Children and young people in custody: inquiry



Consultation responseChildren and young people in custody: inquiryConsultation detailsTitle of consultation: Children and young people in custody - InquirySource of consultation: House of Commons’ Justice CommitteeDate: 01 October 2019For more information please contactBridget O’RourkeEquality and Human Rights CommissionArndale House, The Arndale Centre, Manchester, M4 3AQ0161 829 8567Bridget.O’Rourke@Contents TOC \o "1-1" \h \z \t "Heading 2,2" Our response PAGEREF _Toc33197739 \h 2Summary PAGEREF _Toc33197740 \h 2Is the current minimum age of criminal responsibility too low and should it be raised? PAGEREF _Toc33197741 \h 3Is the use of force in the secure estate proportionate and properly monitored? PAGEREF _Toc33197742 \h 6Our responseThe Equality and Human Rights Commission (the Commission) has been given powers by Parliament to advise Government on the equality and human rights implications of laws and proposed laws. We can publish information or provide advice, including to Parliament, on any matter related to equality, diversity and human rights.We welcome the opportunity to respond to this inquiry. We have focussed our response on two questions that are within our current strategic priorities: the minimum age of criminal responsibility and the use of force. This is a simple Word document template with in-built styles. You should use this template when writing any documents for the Equality and Human Rights Commission. SummaryWe are concerned that the low age of criminal responsibility in England and Wales remains out of step with international standards. In relation to youth custody, we are concerned about an increase in the use of force and other restrictive interventions on children. This includes the disproportionate use on groups sharing protected characteristics, and the ongoing use of pain-inducing restraint and solitary confinement.We recommend that the UK Government, and the Welsh Government where relevant:Significantly raise the age of criminal responsibility in line with international human rights standards.Ensure that restraint is only used against children to prevent harm to the child or others, and only as a last resort.Prohibit pain-inducing restraint and solitary confinement on children, in line with UN treaty body recommendations.Ensure that the use of restraint in youth custody is lawful and based on human rights principles, in line with our restraint framework.Ensure that a uniform approach is taken to recording and publishing restraint data across youth custody settings, and that the data is used to tackle disproportionality.Improve complaints and investigation processes in relation to restraint across youth custody settings. Is the current minimum age of criminal responsibility too low and should it be raised?The age of criminal responsibility in England and Wales is 10 years old, which is one of the lowest in Europe. In 2017, there were 616 arrests of primary-age children (10-11) in England and Wales. In the year ending March 2018, 47 10-year-olds and 229 11-year-olds received a youth caution or sentence. This means that a large number of children at a young age are being exposed to a criminal justice system, which may have harmful effects on their wellbeing and development. The age of criminal responsibility in England and Wales is inconsistent with accepted international standards. The UN Committee on the Rights of the Child has recommended that states increase their minimum age to at least 14. The UN Committee Against Torture has also expressed concern about the UK minimum age, and called for it to be raised. Despite this, the UK Government has continued to indicate that it has no plans to raise the age of criminal responsibility. In 2019, the minimum age of criminal responsibility in Scotland was raised to 12 years old. The age of criminal responsibility in England and Wales assumes that children of 10 years and older are mature enough to stand trial and be accountable before the law in the same way as adults. Due to a better understanding of brain and behavioural development in childhood, these assumptions are now being questioned. A report by the Royal Society, for example, notes that the brain is developmentally immature at 10 years and continues to undergo important changes related to regulating behaviour, and therefore that the minimum age of criminal responsibility may be “unreasonably low”. The UN Committee on the Rights of the Child has similarly reported that maturity is still evolving in children aged 12 to 13 and they are therefore “unlikely to understand the impact of their actions or to comprehend criminal proceedings.”Furthermore, there is evidence that criminalising children negatively affects their future prospects and makes them more likely to reoffend as adults. Reoffending rates are high among children who have been in custody, and contact with the criminal justice system reduces the likelihood that children complete education, achieve qualifications and gain meaningful employment. We recommend that the UK Government:Significantly raises the age of criminal responsibility for England and Wales in line with international human rights standards.Is the use of force in the secure estate proportionate and properly monitored?We are concerned about unlawful use of restraint against children and young people in custody, as well as the disproportionate use of restraint on certain groups sharing protected characteristics. The Commission defines restraint broadly as an act carried out with the purpose of restricting an individual’s movement, liberty and/or freedom to act independently. It may therefore include chemical, mechanical and physical forms of control, coercion and enforced isolation (segregation). Legal framework for restraintChildren and young people enjoy special considerations under domestic and international human rights law. As children continue to develop physically and psychologically, and are particularly vulnerable to harm, the use of restraint will require weighty justification. The misuse of restraint may violate the following rights protected under the European Convention on Human Rights (ECHR) and incorporated into domestic law by the Human Rights Act 1998:the right to life (article 2)the prohibition of torture and inhuman and degrading treatment (article 3)the right to respect for private and family life (article 8)non-discrimination in the enjoyment of Convention rights (article 14)We have published a human rights framework to promote a rights-based approach to the use of restraint. This sets out the key principles of articles 3, 8 and 14 of the ECHR, and provides examples from a range of settings to illustrate them. The aim of the framework is to reduce the use of restraint and to eliminate unlawful restraint. It can also be used to build consistency in the use of restraint within (and between) sectors. It can serve as a useful starting point for sector-specific guidance and training, and to assess whether policies and practice are compliant with human rights standards.Prevalence of restraint in youth custodyThere has been a substantial rise in the use of restraint in the youth custodial estate in England and Wales. In the year ending March 2018, there were around 5,400 ‘restrictive physical interventions’ across the youth secure estate, a 20 per cent increase compared with the previous year. This is the largest year-on-year increase seen over the last 5 years. Seventy-eight of these interventions resulted in injuries requiring medical treatment, including two serious injuries requiring hospital treatment. There were more than 1,000 incidents of prone (face-down) restraint.In addition to rising rates of restraint, we are also concerned about unlawful restraint in the youth estate. A police investigation into allegations of abuse and unnecessary use of force on children at Medway secure training centre in 2015 led to criminal charges against a number of staff. While no staff were found guilty, an inspection which followed these allegations was highly critical, highlighting weak governance, poorly-trained staff and the absence of a strategy for dealing with violence. A number of groups have raised concerns about the decision to trial a new secure school at Medway, given its problematic history.Segregation and solitary confinementAlong with the use of force, segregation may constitute inhuman and degrading treatment. This is particularly the case when it amounts to solitary confinement, which is defined under the ‘Mandela Rules’ as the confinement of prisoners for 22 hours or more a day without meaningful human contact.Medical bodies including the British Medical Association and the Royal College of Psychiatrists have called on the Government to ban the solitary confinement of children, advising that there are “serious risks of […] causing long-term psychiatric and developmental harm”. They advised that it has little positive effect on the behaviour of young people and makes it harder for them to integrate back into their communities. They warned that the risk of suicide and self-harm is also higher for those placed in solitary confinement.?The UN Committee on the Rights of the Child has called for the UK Government to prohibit solitary confinement for children. The Committee further states that any separation of the child from others should be for the shortest possible time and used only as a measure of last resort for the protection of the child or others. They recommend that where it is deemed necessary to hold a child separately, this should be done in the presence or under the close supervision of a suitably trained staff member, and the reasons and duration should be recorded.There is also evidence of disproportionality in relation to segregation. A study by the Children’s Commissioner for England in 2015 found that specific groups of children, including disabled and ethnic minority children, were at increased risk of being placed in isolation.Pain-inducing restraintThe UN Committee on the Rights of the Child has stated that restraint should not be used to secure compliance, involve deliberate infliction of pain, or be used as a means of punishment. The UN Committee against Torture has also asked the UK Government to ban all forms of restraint that inflict deliberate pain on children.Despite this, the UK Government’s guidance on minimising restraint in the youth estate continues to permit pain-inducing techniques. Although these techniques cannot be used in secure children’s homes, they can be used by staff who are escorting children to and from these homes.Evidence given to the Joint Committee on Human Rights demonstrated that pain-inducing restraint is used within youth custody in England and Wales. The Committee has called for these techniques to be banned, noting that they cause physical distress and psychological harm in the short and longer term and are not compliant with human rights standards.Her Majesty’s Inspectorate of Prisons has also raised concerns about the frequent use of pain-inducing restraint in the youth custodial estate. They advised that there is a need to focus on de-escalating incidents to reduce the requirement to use force. A serious case review into the abuse allegations at Medway secure training centre, published in January 2019, highlighted ongoing widespread and unlawful use of painful restraint at the site.The UK Government has launched a review of pain-inducing restraint across the youth custodial estate. This was due to report in summer 2019, but to date the Government has not published its findings.Disproportionate use of restraint on groups sharing protected characteristicsThe available data indicates disproportionate use of physical restraint in the youth custody estate on the grounds of race and sex. In 2017/18, 30 per cent of use of force incidents were on children from Black or Black British groups, while these groups make up only 26 per cent of the youth custody population. There is striking disproportionality in the use of force on girls and young women. There was also a disproportionate use of restraint for children aged 10-14 compared with 15-18 year-olds.This evidence raises concerns about violations of the right to enjoy equal protection under the Human Rights Act 1998 without discrimination. It also raises questions about the extent to which public authorities are complying with the public sector equality duty (PSED) under the Equality Act 2010. The PSED requires public bodies to collate evidence about the impact of their policies on people with different protected characteristics, and take action to eliminate discrimination and advance equality. We recommend that the UK Government, and the Welsh Government where relevant:Ensure that restraint is only used against children to prevent harm to a child or others, and only as a last resort.Prohibit pain-inducing restraint and solitary confinement on children, in line with the recommendations of the UN Committees on the Rights of the Child and the Convention Against Torture.Ensure that the use of restraint in youth custody is lawful and based on human rights principles, in line with our restraint framework.Monitoring of restraintThere are significant gaps in the available data on restraint in youth custody and inconsistencies in recording practices. In our human rights framework on restraint, we recommend that when restraint is used it should be recorded in proportionate detail to enable its lawfulness to be assessed.The Joint Committee on Human Rights recently reported that data collection about restraint and separation is incomplete for youth custody. The Committee noted that the use of different definitions makes it harder to compare different institutions. They concluded that there is good reason to believe restraint is under-reported in the youth estate and recommended that youth custody institutions collect and publish data about all types of restraint and separation.We recommend that the UK Government, and the Welsh Government where relevant, should:Ensure there is a uniform approach to recording, monitoring, evaluating and publishing restraint data across all youth custody settings. This includes secure schools when they become operational. Ensure that the above data is used to identify and tackle disproportionality in the use of restraint.Access to complaints mechanisms In our restraint framework we advise that, wherever possible and where urgency permits, individuals must be consulted and involved in decisions to restrain them, or to continue restraint for a prolonged period.The Joint Committee on Human Rights raised concerns about children not having trust in the complaints and staff disciplinary systems. They recommended that children should be debriefed, following restraint or separation. They advised that staff in breach of the rules should face disciplinary action, which should be communicated to the child. They recommended annual publication of statistics about appeals and their outcomes, including any action against staff.The Prisons and Probation Ombudsman undertook investigations into complaints about the use of force. They reported concerns about the techniques used to restrain young people, the need to de-brief after a restraint, and the adequacy of local investigations when complaints are made. We recommend that the UK Government, and the Welsh Governments where relevant, should: Improve complaints and investigation processes in relation to restraint across youth custody settings so that they are trusted, effective and accessible. ................
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