Youth Justice in England and Wales

Subject to a combination of historical, ideological, political, and administrative influences, the youth justice system in England and Wales today does not lend itself to easy classification. Historical shifts between punishment and welfare-oriented approaches to young people who offend have left their imprint, so too have political ambitions for a safe and productive society and pragmatic concerns related to management, resourcing, and cost. Then there are the unforeseen consequences of policies and events outside of the sphere of youth justice.

What is clear, however, is that the system is shrinking at present: between 2005 and 2015 the numbers of proven offences by young people fell by 70 percent (MoJ/YJB, 2016a). In this introductory section we provide a brief historical overview of the social, cultural, economic, and political agendas that have shaped youth justice in England and Wales and that illuminate the background context to this interesting trend.

Concerns for the welfare of young people who broke the law were the initial driver for the establishment of a stand-alone youth justice system in England and Wales. From the middle of the nineteenth century, liberal reformers challenged the penal orthodoxy of treating children as adults. One of the early initiatives was the setting up of reformatory and industrial schools proposed by Mary Carpenter for the “perishing and dangerous classes” and for “juvenile offenders” (Carpenter, 1851). The Children Act of 1908 initiated the first youth court and established welfare as a legislative principle for children who broke the law. These welfare foundations were strengthened by the Children and Young Person’s Act of 1933 and the Children and Young Persons Act of 1969, which has been described as the “high water mark of welfarism” (Gelsthorpe and Morris, 1994).

However, the introduction of detention centres with harsh regimes in the 1950s signalled the persistence of punishment as a response to serious or repeated offending by young people (Hagell and Hazel, 2001). It was evident again in the brief return of ‘short sharp shock’ custodial programmes in the early 1980s and gained particular prominence in the 1990s, when, amid heightened media attention to youth crime, including the high-profile murder of James Bulger in 1993, and ostensible public concern about the moral decline of the youth of the day, “no more excuses” (Home Office, 1997) became the popularly punitive cry of politicians (Muncie, 2004; Goldson, 2005).

High custody rates and net-widening policies in the first decade of the 21st century were further evidence of a punitive and risk-averse response to youth offending (Morgan and Newburn, 2012; Goldson and Muncie, 2015). Nevertheless, the voice of welfare persisted in the form of restorative justice initiatives and in the vision for multi-disciplinary youth justice teams established in the Crime and Disorder Act, 1998.

Since 2010 the youth justice system in England and Wales has reduced considerably in size; there has been a steady and marked decline in the numbers of first-time entrants and in the numbers being sentenced to custody (MoJ/YJB, 2015a). While there are indications of an ideological shift towards diversion and de-criminalization of young people, managerial and economic interests have also played a role. There remains, however, a punitive and risk-averse culture at the “deeper end” of youth justice in penal responses to young people who commit serious offences and who are approaching adulthood.

The discussion that follows is divided into four parts: the first outlines the organization of youth justice in England and Wales, including its relationship with adult justice processes and other statutory children’s agencies. The second considers trends in youth convictions and sentencing, including the detention of children in custody. The third discusses the characteristics of young people in the system, and the fourth summarizes key changes in youth justice policy over the past 10 years and reflects on its future direction.

The management and operation of youth justice in England and Wales is divided among several government departments and is influenced in diverse ways and to different extents by their particular agendas and dynamics. Since its formation in 2007, the Ministry of Justice (MoJ) has been responsible for the strategic direction of the youth justice system in England and Wales. The MoJ oversees the youth work of the criminal and civil courts, the provision of youth custody, legal services for young people, and youth offending teams. It is also responsible for the drafting of sentencing legislation. The Home Office oversees the work of the police and initiatives to reduce youth crime, and the Attorney General’s Office oversees the Crown Prosecution Service’s youth work. Other government departments that play ancillary roles are the Department for Education, in relation to education and training in custody and the Department of Health in relation to mental health services for young offenders. The Welsh Assembly, formed in 1998, shares the governance and oversight of the system in Wales. It is has developed its own youth justice strategy (“Children first and offenders second”; Welsh Government / Youth Justice Board, 2014, p. 4) and a distinctive welfare-oriented voice in youth justice policy.

The Court of Appeal in England and Wales, the UK Supreme Court, and the European Court of Human Rights play an important moderating role in the sentencing of young offenders. Judges in these courts hear appeals against sentences viewed to be excessively harsh or lenient, and their decisions provide direction for subsequent sentencing practice. Political attempts to intervene in judicial decision making at case level have been overruled (see, for example, R v. Secretary of State for the Home Department, ex parte Thompson and Venables [1998] AC 407 8-9). Rulings by the European Court of Human Rights also directly affect sentencing law, as evidenced by the abolition of indeterminate sentences for young and adult offenders following James, Wells and Lee v. UK [2012] ECHR, which concluded that in the post-tariff phase, detention had become unlawful as offenders were not able to access courses that would lead to their release. Youth justice sentencing remains therefore to some extent independent of political interests.

The Youth Justice Board (YJB) of England and Wales, a non-departmental public body established by the Crime and Disorder Act 1998, oversees the work of youth offending teams (sometimes known as youth offending services) who supervise young offenders in their region. The YJB advises on national standards and good practice and has operational responsibility for the commissioning of custodial places for young people. The tasks of monitoring and evaluation of the work of the police the courts, the youth justice teams, and secure accommodation providers are undertaken by a number of inspection bodies from prisons, probation, education, and social services.

The involvement of multiple government departments and official bodies with their own management priorities adds a dimension of unpredictability to the development of youth justice practice; for example, the introduction and later abandonment of police performance targets related to the numbers of offences brought to justice were linked to a rise and fall in the numbers of young people arrested and given out of court disposals between 2002 and 2010 (YJB/MoJ, 2013, p. 18). The diversity of management influences also presents challenges for the system’s conceptual coherence; for example, despite a strong political interest in transforming the education of young people in custody (MoJ, 2013a) changes to the structure of education examinations at 16 + and 18 + years in 2012 reduced opportunities for young people on short-term custodial sentences to work towards mainstream qualifications (Lanskey, 2014).

There have been relatively few major changes to the management structure of the youth justice system since 2007. The cost-cutting agenda of the Coalition Government of 2010 in the face of economic recession led to the Ministry of Justice proposing the abolition of the Youth Justice Board, but this was not carried through in the face of strong political and professional opposition (see, for example, the Prison Reform Trust, 2013). However, with the smaller numbers of young people in the youth justice system, the government is looking again at the role of the YJB (Lord Chancellor and Secretary of State for Justice, 2015). Some recent modifications reflect successive governments’ interests in privatizing justice, such as the contracting out of some secure accommodation, the management and provision of electronic monitoring equipment (tags), and the provision of court transport services and education in the secure estate.

As the first formal point of contact with a young person suspected of an offence, the police are the gatekeepers to the system (see Figure 1). They make one of four decisions: to take no further action, to employ a diversionary measure such as a non-statutory community or restorative justice resolution, to issue a statutory out-of-court disposal, such as the Youth Caution and Youth Conditional Caution, or to submit the case to the Crown Prosecution Service (CPS) for prosecution.

The police refer all young people who enter the youth justice system to the local youth offending team (YOT) or service (YOS). These multi-disciplinary teams established by the Crime and Disorder Act of 1998 draw their members from social services, police, probation, education, and health. In 2014 there were 158 YOTs or YOSs in England and Wales (MoJ/YJB, 2015a). Risk is the watchword of this administrative youth justice. YOT case workers are responsible for assessing a young person’s risk of re-offending, risk of vulnerability, and risk to others by using the ASSET software tool. They monitor young people’s progress during their time in the youth justice system (at the police station, at court, and during their sentences) and arrange interventions to meet the conditions of community sentences. YOTs may also work with young people considered to be at risk of offending. Stephenson et al. (2007) argue that this preoccupation with risk has displaced consideration of need and “provides a spurious sense of certainty and reliability over something as troubling and uncertain as the delinquent behavior of young people” (2007, p. 4).

The majority of cases referred to the CPS are heard in the youth court, which is run by a specially trained bench of lay magistrates (volunteers without formal legal qualifications who are trained to hold judicial office) or a district judge (a full-time professionally qualified judge). Its layout and procedures are designed to be less formal than in the adult system and sessions are conducted in private. However, the Crown Court hears cases where young people are charged with indictable offences (serious offences that require a trial by jury) or where the young person is to be jointly tried with an adult. Proceedings in the Crown Court are open to the public and are conducted with the formality of an adult criminal trial with judge and jury. There is no lower age restriction applied here; offenders as young as 10 years (the age of criminal responsibility) can be tried in the Crown Court—as well illustrated in the famous James Bulger cases (Hollingsworth, 2013). The Crown Court tries around 7 percent of all indictable offences by young people (MoJ/ YJB, 2015b). Criticisms of the Crown Court include the inexperience of some judges in proceedings involving young people, the intimidating formality of the procedure, and the lack of obligation to exclude the public from the court (All Party Parliamentary Group for Children, 2010). To address these criticisms, a recent independent parliamentarians review of the Youth Court (Carlile, 2014) recommended that there should be a presumption in law that child defendants are brought before the youth court.

Young people who receive a custodial sentence may be sent to one of three types of custodial institution: (1) secure children’s homes, (2) secure training centers, or (3) young offender institutions. Secure children’s homes (SCHs) are run by local authorities or private companies. They typically have 6 to 40 beds and accommodate young people aged 10 to 14, young women up to the age of 16, and young men aged 15 to 16 who are assessed as particularly vulnerable. There are three Secure training centers (STCs) which house approximately 70 young people (young men up to the age of 15 and young women up to the age of 17) in residential units of 6 to 8 individuals. Initially all run by private operators, one has recently been taken over by the National Offender Management Service following evidence of staff abuse of young people (MoJ, 2016a). Young offender institutions (YOIs) are run either by the state Prison Service or a private contractor. They accommodate up to 400 young men aged from 15 to 18 years old on wings of up to 60 and may operate a shared site with young adults from 18 to 21 years old. SCHs are the most expensive form of secure accommodation, charging an average of £212,000 per place per year. The average annual cost of a place in an STC is £178,000. With their lower ratio of staff to young people and older accommodation, YOIs are the cheapest form of secure accommodation. Their annual cost of £65,000 per place has remained stable since 2009/2010 (MoJ, 2013a: 8). The majority of the population in custody —68 percent in 2013/2014 (MoJ/YJB, 2015a, p. 44)—is accommodated in YOIs.

The cost of sentencing a young person to custody is significantly higher than a community disposal. In 2010, the National Office estimated that the cost of a 6-month Detention and Training Order (where three months is served in custody and three months in the community) typically ranged from £20,300 to £50,500. This is in contrast to a range of £7,800 to £9,300 for 6 months’ Intensive Supervision and Surveillance Provision (ISSP), the most intensive form of community disposal and considered to be a realistic alternative to custody (YJB, 2005, p. 16).

With declining numbers of young people in the youth justice system, the infrastructure of youth justice is shrinking: the level of staffing in youth offending teams reduced by 15 percent between 2010/2011 and 2011/2012 (MoJ/ YJB, 2013a, p. 74); there are fewer youth courts as a result of the government decision to close 93 magistrates’ courts and 49 county courts in 2010 (MoJ, 2010) and the secure estate has reduced to nine secure children’s homes, three secure training centers, and five YOIs for males (YJB, 2014b). There is some evidence that these reductions are having a negative impact on the principle of a local and youth-oriented justice system. As a result of the court closures and declining numbers, children who are detained overnight by the police are more likely to appear in the adult magistrates’ court, resulting in inappropriate decisions (see Carlile, 2014: 5). In 2007 the YJB abandoned a target of placing 90 percent of young people within 50 miles of their home (YJB, 2014a), and it was estimated that in 2011 30 percent of young people were incarcerated more than 50 miles from their home, including 7 percent held over 100 miles away (Murray, 2012, p. 17). This figure is likely to have increased, given the more recent closures in the secure estate.

There are several shared boundaries between the youth justice system and the statutory systems of health, welfare, and education. Secure children’s homes may accommodate young people in local authority care without criminal records, and a young person in custody may be transferred under part III of the Mental Health Act 1983 to one of seven secure psychiatric units run by the Department of Health. Between 2006 and 2008 there were 82 referrals of young people out of the youth justice system into secure psychiatric care (House of Commons, 2008a,b). Practitioners have suggested that “many young people with forensic mental health needs end up in very different care settings in quite an ad hoc manner: (Hoare and Wilson, 2010, p. 8).

More commonly the provision of these other services takes place within the youth justice system. The creation of multi-disciplinary youth offending teams was to ensure greater local co-ordination between youth justice and the providers of social services (Gelsthorpe and Kemp, 2015). In some cases this model is considered to work well; however, there have also been some highly publicized exceptions. A serious case review of the handling of two young children given indeterminate sentences for torturing and killing another child highlighted failings in the earlier coordination among social, education, and justice services which, it was claimed, could have prevented the offence (Green, 2008). Concerns have also been raised about the practice of temporarily housing in police custody young people with mental health conditions who may or may not be suspected of an offence. This provoked a review of links between the Department of Health and the Home Office (Department of Health and Home Office, 2014). Several research studies have identified that young offenders find it difficult to gain access to and successfully complete mental health interventions (Harrington and Bailey, 2005; Khan and Wilson, 2010). The limited service to young offenders by these other providers has led to a default provision of criminal justice interventions, resulting in a claim of a return to a system of repressive welfarism (Phoenix, 2009).

The age of criminal majority is 18 years. On reaching the age of 18, young people with community sentences are usually transferred to the new arena of probation provision comprising Community Rehabilitation Companies (CRCs) and the National Probation Service¹ and those in custody move into the adult custodial estate. In 2012 it was estimated that 8,000 to 9,000 17-year-olds faced transition into the adult system (Harrison and Stevens, 2012). The vulnerability of young adults who enter adult justice systems has been highlighted internationally (Lösel et al., 2012), and the problems are no less evident in the English and Welsh system. With the larger numbers in the adult justice system, prisons and probation services are unable to offer as individualized and consistent support as in the youth system and are not statutorily obliged to have concern for the welfare of the person. Despite a joint protocol between the National Offender Management Service and the YJB to support the process, it is claimed that a lack of coordination between youth and adult agencies has resulted in an under-appreciation of the vulnerability of young adults and insufficient support to prevent re-offending, self-harm, and suicide (Harrison and Stevens, 2012).

In England and Wales there is a marked distinction in penal responses to youth offending related to the perceived severity of the offence. We illustrate this distinction in the following discussion of current youth justice disposals, including recent initiatives designed to tackle knife crime and gang violence. We describe the introduction of initiatives “at the edges” of the system (prevention programs and civil orders) intended to divert young people away from crime and the trend towards longer sentences at the deeper, “heavier” end of the system.

The minimum age of criminal responsibility in England and Wales is 10 years. This was established in the Children and Young People’s Act of 1963. In 1998 doli incapax (the legal requirement to prove that a child fully understood his or her action was wrong) was removed for 10- to 13-year-olds. Since 2010 there have been proposals from several bodies (see for example, All Party Parliamentary Group for Children, 2010) to raise the age of criminal responsibility to 12 years in line with recommendations of the Committee of the United Nations Convention of the Rights of the Child (UNCRC, 1989). A private members’ bill to raise the age of criminal responsibility was introduced in the House of Lords in 2013 but was not completed before the end of the parliamentary session. The bill was re-introduced in June 2015 with the same result (House of Lords, 2015).

The behavior of children below the age of criminal responsibility is in principle a welfare issue; however, the lines between welfare and criminal justice in this matter are fuzzy. The Crime and Disorder Act of 1998 introduced civil measures for children under the age of criminal responsibility who commit or are considered to be at risk of committing an offence for which they would be prosecuted if they were 10 years or over. Children may be made subject of a Child Safety Order, which although decided in the family proceedings courts would place them under the supervision of a youth offending team for up to 12 months. If a child does not remain compliant with the order, then the court may consider placing him or her in the care of the local authority. Although these are civil rather than criminal sanctions, because youth offending services play the prominent supervisory role, the distinction in practice may not be so obvious.

Parents of children below and above the age of criminal responsibility may also be drawn under the supervision of youth offending services. Parenting Orders were introduced in June 2000 following the Crime and Disorder Act of 1998. Their range and availability was extended in 2003 with the Anti-social Behavior Act, which also introduced less formal Parenting Contracts. Parents may be issued with a Parenting Order (involving training over a 12 week course—two hours each week) or asked to sign a Parenting Contract if their child repeatedly gets into trouble and it is considered that they are not taking reasonable steps to control his or her behavior. Over the 10 years between 1999 and 2009, 5,431 men and 3,182 women were issued with parenting orders (House of Commons, 2011). The number of parents receiving orders has fallen significantly from a peak of 1270 in 2008 to 276 in 2014/5 (MoJ/YJB, 2016b, p. 39). The sharp decline may be linked to the fall in numbers of young people in the youth justice system and the greater use of alternative measures such as Family Intervention Plans and Parenting Contracts (Evans, 2012). The few studies on impact suggest that the offending of children whose parents receive orders may be checked (Evans, 2012), but parenting orders have been criticized for their potential to burden and further socially exclude parents who are already marginalized, particularly single mothers (Burney and Gelsthorpe, 2008).

There has been a tendency in recent government legislation to work around the edges of the youth justice system and use civil orders to address what is perceived to be unruly or anti-social behavior by young people above the age of criminal responsibility. Anti-social behavior orders (ASBOs), which were introduced in 1998 and extended in 2003, were designed to prevent misdemeanors considered too minor for criminal prosecution. An ASBO could ban a young person from a particular place or prohibit certain behaviors such as drinking alcohol in public places. The name and photograph of the young person could be displayed in locations from where they were banned. Breach of an ASBO could lead to a criminal conviction, and if the young person was over 12 years, a detention and training order (DTO) could be issued for up to 24 months. The orders were criticized for widening the net of the youth justice system and criminalizing young people (Morgan and Newburn, 2012). Nevertheless government interests to monitor and control anti-social behavior remain active, and a review in 2010 led to new measures in the Antisocial Behavior, Crime, and Policing Act in 2014 which replaced ASBOs with civil injunctions and Criminal Behavior Orders.

Recent and significant contributions to the new portfolio of civil measures that can be taken against young people are gang injunctions. Concerns about gang-related violence by young people following the riots in August 2011 led the coalition government to bring forward the date for the commencement of gang injunctions for 14- to 17-year-olds in January 2012 (Home Office, 2015). A gang injunction is a civil order of up to 2 years. The conditions attached are similar to those associated with criminal penalties; for example, a curfew would result in the young person wearing an electronic tag.

A breach of a civil or gang injunction could lead to a supervision order or to a detention order for up to 3 months in a secure training center, young offender institution or secure accommodation. As the latter is a civil order, however, there is no statutory obligation to provide post-detention after-care.

These new types of civil orders raise three concerns. First they only require a civil standard of proof; that is, it is only necessary to prove “on the balance of probabilities that the respondent has engaged in, or has encouraged or assisted, gang-related violence” (Section 34, Policing and Crime Act, 2009; and Crime and Security Act, 2010) rather than to achieve the criminal standard of proof, that is, beyond reasonable doubt. Second, although they cannot officially criminalize young people if they are breached, the consequences of breach can lead to sanctions identical in practice to criminal sanctions but without equivalent protection. Third, the use of civil measures may result in these young people being removed from official justice figures and escaping the scrutiny of justice monitoring bodies.

For young people over the age of criminal responsibility who are suspected of committing an offence, there is a range of informal, non-statutory, and statutory responses. Offences are given a gravity score by the police based on the nature of the offence and mitigating or aggravating factors. For the most minor offences, such as trivial thefts, public disorder, criminal damage (such as vandalism), and inconsequential assaults, a community resolution or street-level restorative justice program might be opted for. These are informal non-statutory responses often used for first-time offences where there has been an admission of guilt and the victim has been consulted.

In the wake of criticisms of the increasing criminalization of young people who commit minor offences (see, for example, Morgan, 2009), Youth Cautions and Youth Conditional Cautions, formal out-of-court disposals, were introduced in April 2013 to replace the previous escalatory system of penalties, reprimands, and warnings. A Youth Conditional Caution has a compulsory assessment and intervention attached to it. The conditions are designed to be rehabilitative (e.g., attendance at a substance misuse program) or reparative (e.g., repairing damage, payment to a local charity) but can be punitive, such as a financial penalty or unpaid work. There is no limit to the number or stipulated order of youth cautions and youth conditional cautions a young person may receive, and they may be given to a young person previously convicted of an offence. A young person does not receive a criminal record on receipt of a Youth Caution or Youth Conditional Caution.

With the exception of sentencing decisions related to some serious crimes (to be discussed later), the courts are statutorily obliged to have regard for the principal aim of the youth justice system—that is, to prevent re-offending by children and young people—and also for the welfare of the child (Sentencing Council, 2009). The lightest measure a court can order following a conviction is an absolute discharge or a conditional discharge. Other first-tier court disposals are fines and reparation orders (where the young person makes a reparation in kind) and referral orders. At this lighter end of youth justice a focus on diversion, reparation, and restoration is apparent.

A referral order between 3 and 12 months is the most common community sentence a young person receives when convicted in court for the first time. It is based on a restorative approach that involves the young person entering a contract with a youth offender panel consisting of two volunteers from the local community and a member of the youth offending team. Victims are given the opportunity to attend a panel meeting or to have their views represented. The contract can include repairing any damage caused or making financial recompense, as well as interventions and activities to address the young person’s offending behavior.

A youth rehabilitation order (YRO) is the generic community sentence for more serious offences. It was introduced in 2008 to simplify the previous multiple array of community sentences and with the aim of offering a tailored response to the young person’s offending behavior. A YRO will typically have one or two conditions attached from a menu of 18 options ‘to provide for punishment, for protection of the public, for reducing reoffending and for reparation” (YJB 2010, p. 9). These can include participation in education or treatment programs, unpaid work, and electronic monitoring (Intensive Supervision and Surveillance Provision).

The most common custodial sentence for a young person is a detention and training order (DTO). A DTO can be given to young people aged 12–17 years and can last between four months and two years. The first half of the sentence is spent in custody, the second half in the community under the supervision of the YOT. Following changes in the Legal Aid, Sentencing, and Punishment of Offenders (LASPO) Act 2012, young people may be subjected to a further three months of supervision by the youth offending team after their DTO has finished; in effect, receiving a sentence after a sentence and may be recalled to custody for breach of their DTO during this period.

Long-term custodial sentences are given for grave offences and to young people defined as dangerous offenders. These sentences have the same maximum lengths as for adults. A mandatory life sentence is given for all offences of murder, where the sentencing court determines a minimum tariff of imprisonment after which the young person can apply to the parole board to be considered for release. In the Criminal Justice Act of 2003, the government introduced an indeterminate sentence “detention for public protection” which applied to young people defined as dangerous offenders. These sentences were abolished in the LASPO Act 2012, following an intervention by the European Court of Human Rights, which ruled that indeterminate sentences breached human rights legislation (see James, Wells and Lee v. UK [2012] ECHR) but new extended sentences were introduced in their place. At this “heavier” end of sentencing the difference between youth and adult justice becomes less distinct. Indeed, for all custodial sentences that have a statutory minimum length and for life sentences, the duties of the court to have regard for the youth justice aim to reduce re-offending and for the welfare of the child are removed (Sentencing Guidelines Council, 2009).

The “new penological” (Feeley and Simon, 1992) orientation of the youth justice system is evident in the complex system of recording and monitoring of young people and their offences. Minor disposals such as street resolutions are recorded locally, but out-of-court disposals such as cautions and any court disposal are recorded nationally. All disposals that are given to a young person of whatever seriousness and length—spent or unspent, recorded locally or nationally—may be disclosed to certain employers through a disclosure and barring service (DBS) check.

To reduce the negative consequences of a criminal record, the LASPO Act 2012 introduced shorter rehabilitation periods (the period after which an offence is considered spent and need not be disclosed) for young people who received youth rehabilitation orders and custodial sentences of under four years. However, custodial sentences of four years or longer are never spent. Further, administrative changes to the measurement of the period (from the last day instead of the first day of the order) meant that the rehabilitation period became longer for YROs over 6 months and the rehabilitation period for a DTO was also extended for the youngest offenders in custody (those aged under 15 years). Thus, a punishment and risk-oriented response to more serious offences and an interest in administrative consistency undermined to some extent the decriminalizing ambitions of the legislation.

Figure 2 presents the recent flow of young people through the youth justice system. The number of proven offences by young people has fallen from by 68 percent between 2003/2004 and 2013/2014 (MoJ/ YJB 2015a, p. 30). The overall trend was upward until about 2005/2006, after which numbers of proven offences in most groups dropped steadily. However, it should be noted that the growing phenomenon of cybercrime is not included in these official measures (McGuire and Dowling, 2013). Despite the decline in numbers, young people as a proportion of the offending population are overrepresented in the criminal justice system (MoJ/ YJB, 2015a). Violence against the person, theft and handling of stolen goods, and criminal damage and drug offences are the most common offence types (MoJ/ YJB, 2015a).

Custodial sentences have almost halved in number from 6, 288 in 2003/2004 to 2,226 in 2013/2014, and the custody rate (the proportion of custodial sentences out of all sentences given) has fallen overall from 7.9 percent in 2001/2002 to 6.6 percent in 2013/2014 (MoJ/ YJB, 2015a). However, the frequent use of custodial remand (where young people charged with an offence are sent into custody until the date of their trial) has received criticism from penal reform organizations (see, for example, Gibbs and Hickson, 2009). Around 20 percent of young people in custody are on remand (MoJ/YJB, 2015a). Of these young people, 63 percent were not given a custodial outcome following their remand: 25 percent were acquitted and 38 percent were given community or other sentences (MoJ/ YJB, 2015a, p. 41). The average length of time spent in custody increased from 80 days in 2009/2010 to 90 days in 2013/2014 (MoJ/ YJB, 2015b, table 7.9) and the average custodial sentence length for young people sentenced for indictable offences increased from 12 months in 2003/2004 to 14 months in 2013/2014 (MoJ/ YJB, 2015b, table 5.4). The trend is thus fewer but longer custodial sentences.

There are several possible explanations for the fluctuations but overall declining numbers of young people in the youth justice system. One is the natural effect of a decrease in the population of 10- to 17-year-olds (Office for National Statistics, 2015a), a second concerns changes in the recording and classification of crime, and a third relates to diversionary youth justice strategies (specifically by the police and the courts) to address young people’s behavior. The overall drop in proven offences largely mirrors wider trends in national crime rates recorded by the police and by the Crime Survey for England and Wales (Office for National Statistics, 2013). Bateman (2015) argues that, as there are no grounds to suspect that adult offending has declined disproportionately to young people’s offending, it is reasonable to infer that there has been an actual reduction in criminal activity by young people. However, there have also been fluctuations in recorded offences and court disposals that have been associated with changes to the rules for recording crime and changes to police performance targets. For example, between 1998 and 2003 the increase in recorded crime has been attributed to changes to the Home Office Counting Rules in 1998 and the introduction of the National Crime Recording Standard (NCRS) in 2002 (see Simmons et al, 2003). Similarly, a 7 percent increase in police recorded crime in 2015 has been linked to improved recording measures (Office for National Statistics, 2015b). As mentioned earlier, the increase in out-of-court disposals between 2003 and 2007 has been attributed to police targets for offences brought to justice and sanction detections introduced in 2002 to emphasize zero tolerance; the net effect was that the police pursued minor rather than more complex crimes, however. The sharp reductions in proven offences and disposals coincide with the change to these targets in April 2008 (YJB/MoJ 2013) following criticism of the increased criminalization of the population for trivial misdemeanors (House of Commons, 2013, 7th report, para 38) including young people (Morgan and Newburn, 2012). Further, the current absence of reliable measures of cyber-crime (McGuire and Dowling, 2013) may be limiting the visibility of online offending by young people. In parallel, there has been an increased focus on informal restorative programs and ‘triage’ schemes that are considered to have diverted more young people away from the system (Home Office, 2012).

The fall in custody numbers may be attributed to systematic encouragement of the courts to divert young people from custody and legislation in the LASPO Act 2012 to reduce the numbers remanded to custody. However, there are some counter trends. The Riots of August 2011 provoked a strong punitive response from the courts: remand custody was used frequently and sentences were longer than customary. Approximately 3,000 people were brought before the courts, of whom 27 percent were aged 10–17 and a further 26 percent were aged 18–20 years (MoJ, 2012). Forty-three percent received an immediate custodial sentence for offences at magistrates’ courts in comparison with 12 percent for offenders sentenced for similar offences in England and Wales in 2010. The average sentence length was 5.1 months in comparison to 2.5 months for offenders sentenced for similar offences in England and Wales in 2010 (Berman, 2011). The offence of “joint enterprise” revived by the Serious Crime Act of 2007 in part to address serious gang-related violence including murder is also believed to have contributed to an increase in the numbers of young people serving long prison sentences. The Prison Reform Trust argues that it is being used disproportionately in cases involving children and young adults (House of Commons, 2012). Recent government legislation aiming to reduce knife crime may also have a future impact on custody rates for young people. In 2012 government introduced a new offence of “threatening with a knife in public or on school premises,” which carries a mandatory custodial sentence for young people aged 16 years and over. Similarly, in 2015, the Crime and Courts Act 2015 introduced a mandatory custodial sentence for young people aged 16 years and over for a second conviction for possession of a knife or offensive weapon.

The majority of young people in the youth justice system (78 percent) are aged 15 years and over; 81 percent are male and 75 percent are from a white ethnic background (MoJ/YJB, 2015a). Over the past nine years the proportion aged between 10 and 14 years has declined, the proportion of young women has fluctuated but remains around 17 percent, and the proportion of ethnic minorities has increased from 15 percent in 2007/2008 to 25 percent in 2013/2014 (MoJ/ YJB, 2015b; MoJ/ YJB, 2013b).

Increases in the proportions of young women and girls in the youth justice system in 2009/2010 were attributed to a new “ladette” culture typified by rowdiness, violence, and binge-drinking (Sharpe, 2012). Researchers argued, however, that girls were not “worse” than before but that youth justice initiatives and processes particularly aimed at young girls perceived to be at risk of offending drew more girls and young women into the system (Sharpe, 2012; Worrall, 2001). Recent figures suggest this trend is now declining (MoJ/YJB, 2015b). Sharpe and Gelsthorpe (2015) suggest that girls have experienced the advantages and disadvantages of welfarism, which views them at risk, in moral danger, and in need of protection. The advantages have included diversion from the system, but the disadvantages have included ‘up-tariffing’ where their offending contradicts gender role-stereotypes and leads to confusion in the courts over the distinction between high welfare needs and high risk of reoffending.

Concerns about the disproportionate numbers of young people from ethnic minorities in the youth justice system remain. In a study commissioned by the Youth Justice Board in 2004, Feilzer and Hood found that black communities were significantly overrepresented in the youth justice system; mixed race youths were more likely than white youths to be prosecuted rather than given pre-court disposals; black and mixed race youths were more likely to be remanded in custody and not prosecuted and were more likely to receive longer community and custodial sentences. Asian youths were more likely to be sentenced to custody than white youths (Feilzer and Hood, 2004). Recent statistical data by the Ministry of Justice suggest that there are still differences in the treatment of young people from ethnic minorities. Between 2003/2004 and 2013/2014 there was a decrease in the proportion of White first-time entrants to the youth justice system by 7 percentage points, and a 3 percentage point increase in Black first-time entrants (MoJ/ YJB, 2015b). When compared to national population levels of 4 percent, young black people at 8 percent of the youth offending team caseload are overrepresented; Asian groups are underrepresented at 5 percent of the YOT caseload in comparison to 9 percent of the national population; and numbers of white, mixed race, and other ethnicities are broadly representative of national population levels. Black young people at 22 percent of the custodial population are overrepresented in relation to national population levels and YOT caseload figures (MoJ/ YJB, 2015a, pp. 28–44).

Research on young people in the youth justice system in England and Wales has highlighted their vulnerability in many spheres (Harrington and Bailey 2005; Lanskey 2011; Goldson and Muncie, 2015) and there is recent evidence that a greater number of children in the justice system has complex needs than previously, a figure that is likely to grow as a result of the increased use of diversionary strategies (see Carlile, 2014, p. 6; Youth Justice Board, 2015b, p. 15; Wigzell and Stanley, 2015).

Over half of children and young people who offend have themselves been victims of crime (Rowe and Ashe, 2008); 43 percent of children on community orders were found to have emotional and mental health needs (Healthcare Commission and HMI Probation, 2009) Chitsabesan et al. (2006) found that between a third and a half of children in custody had a diagnosable mental health disorder such as depression and mental health problems were particularly prevalent among girls. Data taken from records of risk assessments (ASSET) by youth offending teams in 2009 indicated that 9 percent of all young people and 15 percent of girls were judged to be at risk of self-harm or suicide, over 50 percent had used cannabis, and 13 percent had used class A drugs (e.g., heroin, cocaine; Morgan, 2009). In 2003 over 25 percent of young people in the youth justice system were found to have special educational needs, 27 percent of young people had previous permanent exclusions from school, and 41 percent of young people were found to be regularly truanting (YJB, 2003).

Children who are, or who have been, in care are overrepresented among the youth justice population. Glover and Hibbert (2009) found that 22 percent of children aged under 14 years had been living in care at the time of their arrest, and a further 6 percent were on the child protection register. This compares with around 1 percent of children within the general population who are in the care of the local authority.

There have been persistent concerns about the treatment of young people in custody (Prison Reform Trust, 2010; Willow 2015). Seventeen young people have died in custody since 2000/2001 (YJB, 2014a, p. 3; YJB, 2015a) and between 2007 and 2011 there were inquests into the deaths of two young people: Gareth Myatt, aged 14 and Adam Rickwood aged 15, following the use of physical restraint (Goldson and Coles, 2005). Physical restraint, which includes pain-compliant techniques, remains an authorized mechanism of control for young people in the secure estate in England and Wales despite significant national and international criticism (United Nations Human Rights Council, 2008; Carlile, 2006).

Although the numbers of young people in custody have been reduced significantly (MoJ/YJB, 2015a), recent inspection reports indicate growing levels of violence, self-harm, and physical restraints in the secure estate and a higher proportion of young people who feel unsafe in custody. In 2011/2012 the custodial experience for young women and girls worsened considerably: restraints rose by 43 percent and self-harm incidents rose by 62 percent from the previous year (MoJ/YJB, 2013a). There has been a 17 percent increase in the number of restraints on minority ethnic young people since 2008, and young men from black and minority ethnic backgrounds were reported as less likely to feel treated with respect than white young men (Kennedy, 2013). The rate of assaults across the secure estate has risen by 44 percent since 2010, and the number of self-harm incidents per 100 young people has increased from 4.1 in 2010/2011 to 6.6 in 2013/2014 (MOJ/YJB, 2015a). The high levels of violence have led to the implementation of restricted regimes in some YOIs and an increased use of segregation and “closed” visits (where young people and their visitor are physically separated and under close surveillance; Lockwood and Hazel, 2015). Official narratives on young people in custody focus on the difficulties they present: young people are “on balance … more challenging to work with” (MOJ/YJB 2013a, 10). The evidence suggests that custodial regimes are amplifying rather than addressing the challenging needs, vulnerabilities, and behaviors of the young people currently in custody.

Youth justice policy in England and Wales continues to be characterized by an awkward compromise between welfare and punitive interests. The welfare principle enshrined in Section 44 of the 1933 Children Act remains visible in sentencing guidelines and legislation, but its remit is shrinking due in part to political and legal assumptions that vulnerability decreases with age. Government and authorities continue to be taken by surprise by the behavior of young people, either in extreme individual cases or by their solidarity and collective enterprise. The gulf between justice agencies and the young social media generation was particularly evident during the August 2011 riots where, after being caught out, the system caught up and delivered a punitive although not so popular form of justice (Newburn, 2012). Yet the binary perspective of punishment and welfare does not fully capture the dynamics of the youth justice system in England and Wales, which, like its adult counterpart, has been shaped in recent years by the development of regulatory management processes, socio-political concerns to identify and control risk, technological advancements in monitoring and surveillance, and political interests to reduce costs and establish a quasi-market of criminal justice services.

It is perhaps of little surprise that managerial interests to coordinate the operation of the large network of organizations in the youth justice system have dominated practice. Management by performance targets has become increasing popular, and system management has become easier in recent years through technological innovation. The development of electronic monitoring equipment and the capacity for large scale data collection and manipulation by sophisticated computer software are two examples of how technology has begun to play a significant role in the administration of youth justice. Whether or not a criminal conviction is “spent,” a young person’s record will remain on a national database with the possibility of it being accessed and publicized. Net-widening has perhaps not disappeared but moved behind the scenes.

In this new era of financial prudence, it is notable that some of the most progressive government initiatives—to reduce the numbers in custody, increase informal restorative justice, and disrupt the escalating path of punishments—are also cost effective. Since the establishment in 1998 of privately run Secure Training Centers, privatization and market competition have played an increasing role in the provision of youth justice services There are some tentative steps towards payment-by-results schemes in the form of local justice reinvestment whereby local areas are rewarded for reducing demand on criminal justice services (Wong et al., 2013). If young offenders’ demand on services is reduced by 10 percent, these areas receive additional funds generated by the savings to invest in further initiatives to reduce re-offending (MoJ, 2013b).

It is difficult to predict how the character of youth justice in England and Wales will develop in this ideologically ambivalent system. The long-standing interest in maximizing the future social utility of young people (Cox, 1997) is evident in the recent government review of education in custody (MoJ, 2016b), but the evidence base for what works for young offenders is limited. There are few evaluations of the effectiveness of youth justice interventions and many that exist are of pilot programs (e.g., Holdaway et al, 2001; Holdaway and Desborough, 2004). A recent meta-analysis by Koehler et al. (2013) of young offender treatment programs in Europe (in which two-thirds of the studies were from the United Kingdom) found positive effects for “cognitive behavioral treatment, structured therapeutic communities, and multimodal systems-oriented programs” and inconsequential or slightly negative effects for “pure punishment, deterrence, and supervision-based interventions” (Koehler et al., 2013, p. 20). However, the extent to which such research evidence will inform policy development alongside political and economic interests is difficult to assess, given earlier perspectives on the links between evidence and policy development (Goldson, 2010).

There is continuing interest in restorative justice, but notwithstanding apparent success in Northern Ireland in making restorative justice central to youth justice (Jacobson and Gibbs, 2009; see also McAlister and Carr, 2014) there is some reluctance to place this at the heart of the system; instead it is largely confined to pre-court disposals (YJB, 2011). Youth justice services are also susceptible to the business interests of private companies, as exemplified by the decision of G4S to sell its youth custodial services following controversy over staff treatment of young people at Medway STC (Travis, 2016) and to state intervention where private providers fail. A different vision, “children first,” has been put forward in Wales encapsulating a rights-based approach to children’s services (Haines and Case, 2015), but although devolution of powers to Wales in this regard facilitates enforcement and extension of existing connections between services in a relatively small area of the country, there has been little willingness on the part of government to entertain such ideas more generally. An Independent Commission on youth crime and anti-social behavior (Police Foundation, 2010) argued that the three pillars of youth justice should be prevention, restoration, and integration. This was thought to be a faint-hearted attempt to reform youth justice however, since the Commission’s recommendations did not fundamentally challenge the continuing high use of custody for vulnerable young people (Goldson, 2011) and, apart from suggesting that the youth justice system should at least do no harm and that interventions should be based on principles of effectiveness and problem-solving, it was seemingly without teeth (notwithstanding the Commission’s police provenance). In the search for values there has also been some discussion of whether we should in fact do less rather than more. The Scottish system of youth justice is very different, of course, and is based on social work principles in the main (Bottoms and Dignan, 2004), but there has certainly been academic and practitioner interest in the notion that doing less may be better (that is, diverting more young people from the system; McAra and McVie, 2007). These aspirations aside, it is clear that the system may continue to shrink and fragment with technological advances in monitoring and surveillance, stronger interests in devolved responsibility (to Wales and to local authorities in England), and with the continued focus on cost-reduction through cuts in management grants to the YJB (YJB, 2015b) and through contracting out service delivery to private providers. Certainly there are incentives to decentralize, given that the National Audit Office estimates that the cost of youth offending is between £8.5 and 11 billion each year (National Audit Office, 2010, p. 12) and a recent departmental review of the youth justice system recommended further integration of youth justice work with local children’s services (Ministry of Justice, 2016). Although the system’s social profile may diminish in response to the declining numbers of young people within it, overall re-offending rates after one year at around 36 percent (MoJ/YJB, 2015a) and at 73 percent for young people released from custody (MoJ, 2013b) indicate that there is more work to be done. There is also some way to go in terms of developing what critics have described as “youth justice with integrity” (Goldson and Muncie, 2015). Recent forms of youth justice arguably lack a value base and fall short of aspirations outlined in the international human rights framework.