Youth Inmates: Solitary Confinement

John Howell Excerpts

Tuesday 2nd April 2019 Westminster Hall

[John Howell (Henley) (Con)]

It is a pleasure to serve under your chairmanship, Mr Hollobone, and to follow the hon. Member for Kingston upon Hull West and Hessle (Emma Hardy). She and I talked about this issue before the debate, so there will be a lot of overlap in our presentations. I am glad that she has interpreted the title of the debate very widely. It talks about youth inmates, which includes not only children but young adults. I will say a little bit about that in a minute.

As well as the hon. Lady’s Select Committee, the Justice Committee published a report, “The treatment of young adults in the criminal justice system”, some time ago in 2016-17, because we were concerned about the effectiveness of the treatment of young adults in the justice system. We looked at the needs of young offenders, their characteristics and the effective ways of working with them. We also went on a visit—this was in the days when Select Committees could go on international visits—to New York and Boston. Hon. Members may view the American system of governance as much stricter and tougher than ours. I could not disagree more. We found a much more liberal approach to the situation, with children treated kindly and efficiently, which had an enormous impact on their rehabilitation.

[Mr Gregory Campbell]

Before the hon. Gentleman moves on, although I fully accept his experience on his visit to that part of the United States, does he agree that, given the complexity of its judicial system, there may well be rapid and significant variations from state to state in the United States of America?

[John Howell]

The hon. Gentleman makes a good point. However, we chose New York because it has some of the toughest criminals. It was interesting to see how the situation was dealt with in that sort of tough environment. As I said, we found a very liberal approach.

Back here, we interviewed the parents of people who had been to youth offender institutes or prison, and I have to say that the feedback was utterly tragic. The personal circumstances of the individuals there had to be heard to be believed. We have to do all that we can to stop those sorts of occurrences. We looked at a wide range of ages—from 10 to 24—encompassing everything that the hon. Member for Kingston upon Hull West and Hessle talked about, and one thing we found was that men and boys account for a disproportionate number of people going through the criminal justice system. There is something about men and boys that needs to be tackled, and seriously.

One thing we looked at was the neuroscience involved—neuroscience has become a very trendy subject these days. A lot of work has been done on how the brain develops and matures. The evidence we heard showed that the brain develops over a much longer period, and that what we would generally describe as maturity is the last thing to develop. The hon. Lady may have experienced that with some of the children she used to teach. I hope that rings a bell with her.

It was also interesting that, as people got nearer to 18, their risk of reoffending actually increased, not decreased; there was something about reaching that age that created much more turbulence for the individuals. We all ought to look very carefully at how solitary confinement or segregation is imposed on people in that situation, because it is not something that immediately jumps out. In fact, there is strong evidence that involvement with the criminal justice system actually hinders the development of boys and men.

We need to do a risk assessment of people who are segregated or put into solitary confinement, and I will give a few examples of the stunning evidence as to why. Learning disability among young people in the general population is between 2% and 4%, but among those in custody it is 23% to 32%—an enormous increase. Communications impairment in young people in the country is between 5% and 7%, but for those in custody it is 60% to 90%—almost all the people there have a communication difficulty. Those with attention deficit hyperactivity disorder are 1.7% to 9% of the general population, going up to 12% of those in custody, while those with autistic spectrum disorder run at a maximum of 1.2% of the general population, going up to 15% of people in custody.

We are dealing with a group of people who are, by any stretch of the imagination, vulnerable and who tend to need a risk assessment in order to assess how they are doing. I know that it has already been mentioned, but the number of people in youth custody who have already been in statutory care is running at two thirds—an enormous number. Again, that suggests that we are dealing with a very vulnerable population.

To produce the report, we went to the young offenders institution at Aylesbury, where we found that segregation was used to reduce movements among young people. However, staff said that it was used when there was a risk of gang violence. Dealing with gangs in that young offenders institution was one of the biggest tasks for staff. We asked the young people there whether they would like to be in a young offenders institution or a prison—many there at the time had been in both—and they said that the change in the justice system when going from a youth institution to an adult institution was like dropping off a cliff face. It is very important to bear that in mind, because it goes back to how they are treated in relation to solitary confinement.

The Justice Committee interviewed, and I have subsequently spoken to, Lord Harris of Haringey, who produced a very good review that looked at young people detained in cells for a long period. He found there might be occasions when it was to the benefit of the individual young person to be confined to their cell. If they were being threatened, it was better to put them in their cell. However, it needs a risk assessment of their mental health and their ability to function there. Whatever the Minister says, in my experience and that of the Committee, that does not happen routinely enough, and that is a big lack in the system.

I will quote one of the witnesses we interviewed, Dr Gooch from Birmingham Law School:

“It is the decisions that are made about how you use segregation and how you use adjudications, which are the disciplinary hearings within the prison. It is the values that you instil about where the boundaries are and what is appropriate behaviour. When you talk about grip, it is not about punitiveness. It is understanding when to lock down and when to use your security measures to their full potential”.

That sort of understanding of the situation suggests there needs to be much greater flexibility in the youth justice system.

I want to pick up on one last point: the question of purposeful activity, which the hon. Member for Kingston upon Hull West and Hessle also mentioned. I have a strong view that we need to instil as much purposeful activity as possible, whether it is in the adult or the youth section of the criminal justice system. On a former Justice Committee, I went to a prison in Denmark where the prisoners, who had a wide range of ages, cooked their own food. For safety’s sake, the knives were chained to the wall. Nevertheless, the very fact that they were able to cook their own food had a big impact on their ability to be rehabilitated. It made a great impression on me and when I came back I mentioned it to the then Secretary of State, and there are prisons where that happens now in the UK. Instilling purposeful activity into young people through education and skills training or whatever is absolutely essential. We need to keep that going if we are to tackle the problem.

I know the Minister will say that this situation never happens—he is laughing at me now—but that when it does happen a risk assessment is done. All I am saying is that in the Justice Committee’s experience, that did not happen. It is not commonplace for it to happen all the time in every case. Given the history that I have given of the differences between the mental illnesses that the general population of young people have and that those in prison have, it needs to happen.

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

As always, it is a pleasure to serve under your chairmanship, Mr Hollobone, but I suspect I will not detain the House for 42 minutes.

I congratulate the hon. Member for Kingston upon Hull West and Hessle (Emma Hardy) on securing what is—she is absolutely right—an important debate. I am grateful for the opportunity to respond. The issue has attracted much scrutiny in recent months, and rightly so. As the hon. Lady will be aware, I gave evidence on the subject to the Joint Committee on Human Rights last year. I will of course carefully consider the recommendations from the inquiry.

I am responsible, through my ministerial portfolio, only for under-18s institutions in the youth custodial estate, and of course Aylesbury is not in that group. However, in response to a point made by my hon. Friend the Member for Henley (John Howell), I want to point out that in the adult estate segregation should be used only as a last resort, when prisoners pose such a risk to themselves or others that no other suitable location is appropriate, and where all other options have been tried or are considered inappropriate. However, there is a specific approach for the under-18 estate.

I want to reassure hon. Members from the outset that children are never, and should never be, subject to solitary confinement in the UK. There is no universally agreed definition of solitary confinement, but rule 44 of the UN standard minimum rules for the treatment of prisoners—the Mandela rules that the hon. Member for Kingston upon Hull West and Hessle referred to—state that

“solitary confinement shall refer to the confinement of prisoners for 22 hours or more a day without meaningful human contact.”

Removal from association, or segregation, is different. I appreciate that the shadow Minister referred to it as segregation, while others refer to it as removal from association, but I think we are talking about the same thing. It is a last resort for the protection of the child or others. It should never be used as a punishment and our rules are explicitly clear on that. To reiterate, it can be used, and is used, only when a child in custody is putting themselves or others at risk, when no other form of intervention is suitable to protect both the individual or their peers, or staff. I just want to mention in that context that segregation can be removal to one’s own cell rather than to a segregation wing. I shall talk later about the statistics and the impact that that matter has on them.

As to safety, the shadow Minister referred to the 2017 report, and I am sure that he would acknowledge that the chief inspector of prisons subsequently acknowledged that there had been improvement, and that the 2017 verdict on the youth estate was not the current one. However, the hon. Gentleman is right to highlight what was said in 2017, because it was a shocking and important report, and we rightly considered it carefully.

Under rule 49 of the Young Offender Institution Rules 2000, children may be removed from association for the maintenance of good order or discipline, or in their own interests, for up to 72 hours. The presumption is that children should be separated—placed in their room —rather than segregated to a segregation unit, wherever it is possible to do so. Children in YOIs cannot be segregated for more than 72 hours without the authority of senior managers in conjunction with the independent monitoring board and healthcare assessments. Segregation can be authorised by the young person segregation review board for up to 14 days at a time to a maximum of 21 days; a prison group director’s authority is required for anything beyond that. The prison group director must review any segregation of a young person that continues for 21 days, and for each subsequent period.

The youth custody service closely monitors the number of children removed from association under rule 49 of the Young Offender Institution rules, to ensure that all relevant management checks are in place—in a moment I will come on to points about mental health and educational assessments, which I know are of particular interest to the hon. Member for Kingston upon Hull West and Hessle. Those checks include the number of instances of children being removed for more than 21 days, which require a prison group director review and approval. The PGD will review the situation again after each subsequent 21-day period.

The reasons why children may be removed from association for longer periods of time vary. As the Children’s Commissioner and my hon. Friend the Member for Henley said, some may choose to “self-isolate”, and refuse to engage with the regime or mix with other children. That can happen for a variety of reasons, some of which I may come to. Other children have been involved in multiple violent incidents, and display violent behaviour towards other children or staff. Each individual case is carefully considered and reviewed to ensure that when children are removed for long periods of time, the reasons for that are appropriate, especially if they are putting themselves, or others, at risk. I labour the point about rules because it is important to be clear that safeguards are in place, and such measures are regarded very much as a last resort, often driven by safety considerations.

As I said to the Joint Committee on Human Rights—the hon. Member for Bradford East rightly highlighted this issue—accurate data is vital for the operational running of any organisation, and to understand what is happening. I asked the chief executive of the youth custody service to look into how data can be better collected and collated in a consistent format. Such data is often reported by different institutions in different ways, which limits our ability to draw the clear conclusions that we need to make evidence-based policy.

It is not true that during removal a young person will have no meaningful human contact. The child will continue to have regular contact with staff, and individual regime and reintegration plans are agreed, with the primary aim of reintegrating children back into regular association and a normal regime as swiftly as possible. Staff are expected to focus on helping children to manage their behaviour, so that they are able to return to regular association. Such reintegration plans can include visits back to residential units for activities such as association, and they could even include sleepovers in the child’s normal room as part of that process.

A member of the healthcare team must be informed within 30 minutes of a child being removed from association in a YOI, and they must complete an initial removal health screen for the young person within two hours. The hon. Member for Kingston upon Hull West and Hessle is right to highlight mental health needs, which we seek to pick up through those screenings. Along with my hon. Friend the Member for Banbury (Victoria Prentis), the hon. Lady mentioned safety in custody and the risk of suicide or self-harm. She is right to suggest that in other contexts some evidence has established a link between isolation in any context and increased mental health challenges, but in England and Wales there have been no deaths among under-18s in prison custody since 2012. As she said, we must do everything possible to ensure that mental health is protected and there is no harm, but thus far we have been partly lucky, and—more importantly—thanks to the diligence of staff in our YOIs and STCs, there have been no deaths in prison custody of under-18s.

While removed, the child must be monitored at a frequency determined by an individual and tailored assessment of their needs. It is desirable to have greater interaction between staff and the child in segregation, to help that child manage their behaviour and return to regular association more swiftly. Such interaction will also alert staff to any concerns about mental health issues, and any risk of self-harm or worse. Every child who has been subject to rule 49 of the YOI rules for a continuous period of seven days must have a detailed short-term assessment of needs initiated. Children removed for a continuous period of more than 30 days must have a detailed care plan drawn up that states how their mental well-being is supported.

[John Howell]

I hear what the Minister is saying. Will he do me a favour and ensure that he keeps an eye on the situation he has outlined, so that it occurs in every case?

[Edward Argar]

I am always willing to do my hon. Friend a favour, and he is right to highlight that point. It is important to have processes, but we need to know that they are followed. In a number of cases, I ask for random individual updates and snapshots of information, so that I can get a feel for whether things are being done the way they should be done, and I look at those files as appropriate.

Wherever possible, children should engage with the regular regime, and other children, during their time in custody. However, there are occasions when it is necessary to remove a child from association because their behaviour is likely to be so disruptive that keeping them in an ordinary location would be unsafe, either for them or for others.

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[Edward Argar]

As I said clearly to the JCHR, removal from association and segregation is different from solitary confinement or isolation. The Mandela rules mention having no “meaningful human contact”, but that simply is not the case when someone is segregated or removed from association. I set out previously just how much direct, meaningful human contact continues throughout that time.

When a child in a YOI is to be removed from association, they must be supported in making representations, with governors taking into account literacy levels, whether they need help from the advocacy service and what might be behind their behaviour—I have met the Howard League, and others, who make that point forcefully and reasonably. Prior to a segregation or removal from association, our experienced staff will do everything they can to de-escalate the situation in other ways. If a young person is removed from association, it is not a case of, “That solves the problem”. That is a reaction and a last-resort response based on safety considerations, and the focus throughout will be on what can be done to support that young person back into association, and address their underlying issues or concerns.

Rule 36 of the STC rules states that a young person who has been removed from association and placed in their room cannot be left unaccompanied for more than three hours in any 24-hour period. Providers keep records on staff observations, which must be undertaken at least every 15 minutes. Authorisation for keeping children “removed from association” is escalated during that three-hour cycle, with authorisation from the duty director to extend beyond one hour. All episodes are discussed at monthly performance meetings as part of the governance and oversight arrangements. In contracted-out STCs, the YCS monitor is informed within 24 hours about any removal from association. The monitor is given a summary of every occurrence of a child being placed in their room within 24 hours, and they receive detailed incident reports that articulate the circumstances that led to that removal.

As I explained to the JCHR last year, when a child is removed from association, they are given as much access as possible to the usual regime, including education and healthcare. That includes not only the provision of education packs and in-room learning but teachers attending to children in their rooms to teach them in person so that they have regular human contact. Children in YOIs are also given time in the open air, as the hon. Member for Kingston upon Hull West and Hessle said, and access to healthcare, physical education and legal advice, even when they are removed from association.

Individual regime plans designed around the child’s needs are agreed and reviewed frequently for each child by a multidisciplinary team. Staff in all under-18 YOIs have been given additional training on the use of segregation or removal from association, on the rules governing it and on how to ensure they comply with them. The use of segregation is heavily monitored by the youth custody service and the independent monitoring board, and indeed by me through my regular meetings with the chief executive of the service.

I am absolutely clear that the safety and wellbeing of the children and young adults in our care must be our highest priority, and I am committed to delivering wide-ranging reform to ensure that we are able to meet that priority in an increasingly challenging environment. The shadow Minister suggested that we needed a review of how youth justice, or youth custody, is conducted. I point him to the review conducted a few years ago by Charlie Taylor, which did exactly that. That review set out for us the direction of travel, which we are pursuing with the new secure schools programme, for example. I will touch on that before I conclude.

To provide some context, as hon. Members stated, there has been a sustained fall in the number of children entering the youth justice system in recent years. In the decade to 2018, juvenile cautions decreased by 91%, the number of first-time entrants into the youth justice system reduced by 86%, and, importantly in the context of this debate, the number of children in custody fell by 70%. The latest official statistics I have indicate that there were only 812 children in the youth secure estate as of January this year, a significant reduction from the almost 3,500 to 4,000 around a decade ago.

Those figures represent significant successes and are a testament both to the work and dedication of those who serve our youth justice sector in all capacities, and to the determination on both sides of the House to focus on rehabilitation and give young people the opportunity to reform and live a productive and successful life rather than being condemned at an early age to a life of going in and out of prison. However, that overall decline has resulted in a concentration in the youth secure estate of children who are convicted of the most serious offences—those who pass the bar above which custody is deemed the last resort for someone under 18 and demonstrate very complex behaviour.

The shadow Minister and others referred to the report by the Children’s Commissioner. We studied that carefully, but we challenged a number of her assertions, as I did openly at the JCHR. There are several reasons behind our challenge. The first is the change in the nature of data collection in the period that she looked at. That is not the only reason why we have seen the number of incidents we have, but we need to be careful about the data. Previously, if a young person was segregated in their own cell, it was not recorded as a segregation; a segregation was reported only if they went to a segregation unit or wing. It is important that we have clear data on any segregation or removal from association. That is one factor. It is not the only one, but it is a factor, so I just sound a slight note of caution there.

The other reason goes back to that really concentrated cohort of people convicted of the most serious offences. The average number of children held for violence against the person has increased by 11% in the last year. The proportion of children in custody for more serious offences, including violence against the person, robbery and sexual offences, has increased from 59% to 70% over the last five years. That is due to the increase in violence against the person offences, which now account for 41% of the youth custody population. The changing mix of offenders who make up that smaller overall number plays a part in both the rising levels of violence and the challenges faced by our youth custody estate.

Furthermore, as I think the shadow Minister touched on, despite the reduction in overall numbers, there has been an increase in the proportion of children from the black, Asian and minority ethnic community in custody. They currently make up around 45% of the custodial population. I am deeply concerned about the proportion of BAME children in custody, and understanding and addressing that is a key priority for me. Since my appointment, I have had the great pleasure of working with the right hon. Member for Tottenham (Mr Lammy) on implementation of the Lammy review. We have created a dedicated youth justice disproportionality team, which is working with stakeholders and criminal justice agencies to follow the principles we set out in response to the review, either to explain clearly why this is the case or to change the way the system works to ensure that there is not unwarranted disproportionality of outcomes for BAME children.

The hon. Member for Kingston upon Hull West and Hessle is absolutely right about the importance of not giving up on anyone, however challenging they are. Young people in custody are some of the most challenging people in our society, for a variety of reasons, as my hon. Friend the Member for Henley said. People may be challenging for mental health reasons or as a result of substance misuse. Often, people are challenging because they come from a background in which they experienced significant adverse childhood experiences or trauma, family breakup or domestic violence. There is a whole range of factors behind that. Where the severity of a crime justifies and requires a custodial sentence, our judiciary must have the power to impose one, but we should not give up on any of those young people, and we should work with them in custody to try to address the challenges and background issues they face.

[John Howell]

One of the other times children are at risk is when their parents are in prison. We at the Council of Europe have been very keen to ensure that there is very good treatment for that. Has the Minister come across that?

[Edward Argar]

My hon. Friend is absolutely right to highlight that factor. I have seen in my work on the female offender strategy the impact that a mother going to prison can have on a young person. It can put them at greater risk of offending or of becoming a victim of crime. I am not aware of the specific work by the Council of Europe, but I know that my hon. Friend is not only an extremely active and valuable participant in the Council of Europe but a strong advocate for its work, so I suspect that he will collar me outside the Chamber and raise with me the research and work it has done that I should consider carefully.

Like my hon. Friend, I believe that every child and young person in custody should have access to and be engaged in meaningful activities, including education and physical activities. The regime should be purposeful, meet the needs of the individuals, keep children occupied and active all day, and deliver the highest quality of education. That is why we have provided an additional £1.8 million of education funding for our YOIs in this financial year, and we are looking at the next iteration of the contracts for the provision of those services.

I am a particularly strong believer—even if my physique does not necessarily demonstrate it—in the benefits that sport and physical activity can bring, particularly in custody. As well as the obvious health benefits, they can provide children and young adults with a sense of achievement, discipline and purpose, and enhance their self-esteem, allowing them to take steps to transform their lives. That is why we are supporting organisations that want to work with children in the justice system and developing new partnerships between establishments, sports clubs and providers to increase access to such activities for those in custody. Members may well be aware of the twinning project that was launched last year to pair prisons with football clubs to deliver new coaching qualifications—33 premier league clubs are now signed up to that—and of the parkrun partnership, which currently operates in 11 prisons across the country, including Feltham, and is expanding.

As I said, engaging activities need to sit alongside effective behaviour management so that children can be out of their rooms and able safely to participate in the regimes and activities provided. That is why we have developed a new approach to behaviour management. Our new behaviour management framework for the youth estate, “Building Bridges”, which was published in February and began its implementation yesterday, draws on research and best practice across our establishments and those of related sectors. It introduces a range of requirements designed to create the right conditions to encourage positive behaviour and proactive, positive cultures, and sets high-level expectations for supporting positive behaviour across all sectors of the youth estate. That will sit alongside a conflict resolution strategy, applying restorative justice principles, and the custody support plan, which will provide each child with a personal officer to work with on a weekly basis in order to build trust and consistency.

I have been encouraged by the progress made by these safety initiatives so far, but there is no room at all for complacency, as both the recent report on youth custody by the independent inquiry into child sexual abuse and the latest HMIP “Children in Custody” annual report, which the shadow Minister alluded to, have made clear. There is more work to do to ensure that youth custody is a safe and effective place for children to turn their lives around.

The HMIP report highlighted the disproportionate use of restraint and segregation in youth custody for BAME children in particular, so we have identified that as a priority area, within our wider strategy, to address race disparities within the criminal justice system. The IICSA report made a number of recommendations aimed at strengthening safeguarding arrangements for children in custody. Despite its shocking findings, we are grateful to IICSA for highlighting those issues. I have written to the inquiry’s chair, Professor Jay, to confirm that we will respond as soon as we are in a position to do so.

More broadly—I come to my penultimate point—we are underpinning all of these reforms with investment in our workforce. The shadow Minister has raised that issue not just in relation to our youth estate but more broadly; I know that he takes a close interest in it. Since October 2016, we have increased the size of our frontline workforce across the prison service by more than 4,700 officers to relieve day-to-day pressures and enable the delivery of more proactive, positive initiatives such as those I have mentioned and the key worker scheme in the adult estate. But we do not only need more staff; we must invest in their training and development to provide them with the knowledge and skills needed to meet the complex needs of those in custody. That is why I was pleased to see that the Prison Officers Association endorsed our reform proposals for the youth custody workforce last week.

We are introducing a new youth justice specialist role and funding all of our youth custody prison officers to undertake a foundation degree in youth justice and transition to that new role on promotion and at a higher pay grade. The training and duties of the role will allow staff to engage with the root causes of children’s offending and more effectively build positive and proactive relationships. More than 300 frontline staff have already voluntarily entered into the qualification, and I look forward to welcoming the first specialists on to the wings in the coming months.

It is crucial that the workforce in the custodial estate are as representative as possible of the group of children they serve. Following the Lammy review, HMPPS made a commitment that at least 14% of new recruits would come from BAME backgrounds by December 2020. I am pleased with the progress we are making in this area; between January 2017 and December 2018 18.5% of the formal offers that were accepted for recruitment to the YCS were from BAME candidates.

Finally, as I said, we continue to work on our proposal to develop secure schools, which we believe are the transformational step in a new approach to youth custody. At present we have prisons with an educational element. What we seek with the reform, and the first secure school planned for Medway, is to reverse that presumption and create instead a school with security, with the education and progress of the young person at the heart of the vision.

I am under no illusions about the challenge we face. We are talking about children who display the most challenging needs and behaviours, and considerable vulnerabilities. Our reforms will support establishments to provide better levels of care, help meet young people’s needs and reduce the likelihood of the need to use separation. If it would be helpful, I am happy to meet the hon. Lady separately outside the Chamber to discuss the education screening, education work and mental health issues raised.

Ultimately, like all of us here, the Government wish to see a change in our system, with fewer young people entering it in the first place and, for those who do, a clear focus on rehabilitation and reducing the risk of reoffending, giving those young people a better chance at life. We want to see more children safer and happier, spending more time engaging in purposeful and constructive activities with a greater hope of a meaningful and crime-free future. I am grateful for the opportunity to respond to the debate.