Report of Advisory Group on Youth Crime

ANNEX C

BARRIERS AND HOW TO OVERCOME THEM

1. Responses to the Review from panel members reveal broad support for well-resourced early intervention and diversion from Hearings where compulsion is not thought to be needed. Once children appear at Hearings, however, there are requests for a wider range of options containing structured programmes to address offending and associated problems, community service, supervised attendance schemes, reparation, restrictions on association and, for a small number, residential facilities, possibly in a secure establishment.

2. There is no legal reason why these measures cannot be imposed at present. Where necessary, they can be specified as conditions in supervision requirements. These are open to test at appeal and to amendment or removal at review. Given that panel members currently exercise substantial powers in relation to children, whom they may require to be placed away from home at undisclosed locations without contact with parents, it is not entirely clear why so many responses to the Review were requesting the granting of powers substantially less intrusive than those they already have.

3. Compulsory measures of supervision are defined at Section 52(3) of the Children (Scotland) Act as 'measures taken for the protection, guidance, treatment or control of the child'. Section 70(3)b obliges the child to comply with any condition contained in a supervision requirement. Where a local authority is satisfied that a condition in the requirement is not being complied with, Section 73(4) obliges it to refer the case to the Reporter and the Reporter is obliged to arrange a review Hearing in terms of Section 73(8).

4. Furthermore, Sections 16 and 17 of the Act give panel members and local authorities discretion, in cases only where it is necessary to protect members of the public from serious harm, to take steps which may not be consistent with their affording paramountcy to the welfare of the child.

5. Possible reasons why decision making in relation to cases where grounds for referral for offences seem to lack a sense of creativity or immediacy may be because:

• the Hearings system as a whole has been focused more on child protection issues than offending
• the legislative changes brought about by the Children (Scotland) Act are still being absorbed
• changes in the re-organisation of Local Government have had an effect on the scope and vision of panel members and the Authorities within which they serve
• unlike care cases where the practitioners working with the child and family are often privy to the evidence and the child is all too often the victim, information about offending tends to be less accessible and highly filtered. Unlike a Court, where the sentencer potentially hears the evidence, panel members may only hear about the offence from the child or young person. All too often, workers themselves are dependent on incomplete accounts which may impede full assessment.

6. Within the Court setting, there is an assumption that by the time young people reach the age of 16, they are 'ready' for Court. The paradox is that those most likely to appear in Court under the age of 18 are also those who are:

• most likely to be immature and impulsive risk-takers who have already been significantly disadvantaged
• most likely to re-offend on deferred sentence if not given support, to default on fines, to fail to keep appointment for supervised attendance orders and to breach their probation
• most likely to find themselves in custody
• more likely to lead chaotic lives which lack constructive home supports
• at greatest risk of substance abuse and violence
• likely to have been victims themselves
• likely to have had limited education.

7. A 1997 survey of young people in Polmont Young Offenders Institution revealed that:

• 41% had been enrolled in special educational facilities as children
• 82% had truanted from school
• 83% had been suspended from school
• 55% had been expelled or excluded from school.

8. In 1996, 16 year olds appeared 3649 times in Court; 17 year olds appeared on 9718 occasions. During 1996/7, fewer than 243 young people were remitted from Courts in Scotland for consideration and disposal of their cases by Hearings. Yet the explicit legal mechanisms for bridging the gap between Courts and Hearings through advice and remit have been available since 1971.

9. Many responses commented on the adverse effect delay can have in responding to children and young people who had been charged with offences. If the deeds are indicative of unmet needs, it seems cavalier to wait until the end of a costly process of prosecution to begin to define and meet them. If services can be delivered sooner, savings in process will help fund more services for more children and young people.

10. Compartmentalisation of funding can become compounded by lack of resources. Doing too little too late is costly in terms of budgets as well as outcome for the child if it means that circumstances deteriorate, offences increase in frequency and seriousness and eventual placement is in a scarce secure placement.

11. Several authorities have well-established multi-agency planning groups in place which undertake strategic planning for children and young people, but Sections 19, 22 and 93 of the Children (Scotland) Act 1995 are ambiguous in the duty they place on local authorities in terms of defining just who is a child in need. Whilst many young people who persistently offend will become children who are looked after or will receive services from Criminal Justice teams, local authorities are asked to take an inferential leap that children who offend are children who are in need.

Suggestions for change

12. There are many good examples of creative and effective work being carried out at present by all the agencies involved in the Hearings and Court systems. Much of this work is being carried out in order to prevent children ever experiencing the kind of situations which can contribute to later offending. Any changes in how we provide services for children and young people who are offending must not lead to any erosion of the following principles of effective intervention: Prevention, Diversion, Intervention, Participation.

13. Enhanced universal services and targeted early intervention will have some effect on reducing levels of offending, but some children will continue to offend and some will offend persistently.

14. The assertion in the Kilbrandon Report that the needs of the children who commit offences are essentially the same as those who are in need of care and protection is no less true now in 2000 than it was when it was written in 1964. Responses to the consultation exercise demonstrate a commitment to the Hearings system and a belief in the value of a single cohesive system rather than the development of separate 'Youth courts' or the transfer of children who commit offences to the adult system. This is not to say, however, that the current system and support arrangements cannot be improved.

15. The measures which have been suggested to improve the current system fall into three broad categories:

• Improving infrastructure
• Improving communication
• Improving use and range of resources.

Improving the infrastructure

16. Training needs were identified for Reporters, Panel members and practitioners in local authorities. The main areas noted were:

• Awareness of child and adolescent development
• Dealing with offending issues
• Victim awareness
• What's in the 'What works' agenda and how to deliver it
• The interface with the adult criminal justice system
• Working together.

It was also thought that procurators fiscal, Sheriffs, justices and practitioners in the criminal justice sector should have access to more information about the Hearings system.

17. Time intervals within the Hearings system are improving as the recommendations and standards of the Time Intervals Working Group are absorbed into the ethos and practice of the Hearings system. Speedier reporting of offences from Police forces to Reporters and supporting agencies has already made an impact but many respondents still commented that delay is a still a significant factor which affects decision making adversely. Information from Local Authority Review Groups and the monitoring of the Time Intervals Working Group Blueprint will be essential to any strategic framework which is developed.

Improving communication

18. Immediate steps can be taken to improve information to and about children and families within the Hearings system:

• a web site about the Hearings system is already in place and can be added to as needed; it may be able to include a mailbox for queries, so that child and young people can tell us directly what it is they want to find out about and whether their queries have been satisfactorily answered
• critical points for information to children and their carers can be identified within the process: the first time a child is warned, the first time a child is charged, the first contact with professional agencies, the first decision by a Reporter, the first decision by a Hearing. What explicit information do we give and do we inadvertently give any mixed or misleading messages?
• because of the close connection between drugs, alcohol and crime, consideration should be given to the introduction of arrest referral schemes from the Police to the local authority to notify immediately in situations where children are charged and alcohol or drugs are involved, either as factors in the actual offence or because the child is under the influence of them
• SCRA is in consultation with partner agencies to clarify expectations about referral protocols. To date, protocols have been agreed in relation to referrals from the Police and Social Work Departments
• transfer and retrieval of information is also under consideration by the Integration of the Scottish Criminal Justice Information Systems (ISCJIS) group
• liaison with the procurator fiscal needs consistency of practice and statistics
• it may be useful for SCRA to review and consult about what information it provides to partner agencies about a child's circumstances, past offending patterns and the current alleged offending at the point of requesting information so that agencies are equipped with as much information as can be shared during the assessment process. Risk assessment is severely impaired if the assessors do not have access to explicit information
• grounds for referral to Hearings should also be explicit, for instance, giving panel members information about time and day as well as date of alleged commission of offences. An offence committed at 4am on a Tuesday in the school term raises some questions family members might prefer to avoid, the answers to which can be crucial in determination of a child's case
• information about the value and nature of goods stolen or damage caused, degrees of risk taken, impact on services etc. are also vital in the determination of the case. Not to talk about them is to minimise the significance of the offending episode in the mind of the child
• consideration also should be given to the extent to which witness statements, information from the victim and productions can be used in Hearings. In a criminal court, the sentencer potentially hears the evidence of the victim and witnesses: this information may not be available to panel members as proof of disputed fact is a matter for a Sheriff to determine during an application for proof and, if grounds are accepted at a Hearing, there is currently no requirement for panel members to explore the circumstances of the incident in any depth. There are clear difficulties in terms of confidentiality of victims, witnesses and alleged co-accused whose cases may have been disposed of differently, especially in view of the provision of the Children's Hearing Rules with regard to access to papers
• in terms of information to Hearings from local authorities about children who persistently offend, it is essential that Social Background Reports contain recommendations tailored to the needs of the individual child which are based on thorough assessments of risk of re-offending and of associated harm to self or others. Where appropriate, assessments should involve psychiatric or psychological input. Reports should contain explicit statements of expectation and outcome and requests for consideration of specific conditions where these are thought to be necessary. Information about social, educational, health and employment/
  training aspects should be included in the care plan presented to the Hearing. Where it is the view of the local authority that more can be achieved on a voluntary basis or that no intervention is required, the arguments for those views should be set forth for consideration
• when Panel members issue or continue supervision requirements and insert conditions, they should be clear about what they expect to be happening. The text of conditions should be unambiguous and the stated and written reasons should make plain what factors they have taken into account in making their decision and what they seek to achieve. The child and family should be quite clear about what has happened at the Hearing, why and what is going to happen; clear achievable goals should be specified which the child and family can understand
• information to victims and members of the community about outcomes of Hearings
• improving communication about process - probably best in a local forum.

Improving use of current powers and resources

19. Virtually all contributors to the consultation exercise highlighted the need for better co-ordination, consistency and funding of resources.

20. The repertoire of programmes which should be nationally available is listed in the report. Authorities already have several components of the repertoire well in place, but several responses to the consultation stressed the need for better access to residential facilities, and especially for detoxification units for children and young people.

Improving involvement of the community

21. Commentators on the Hearings system (McIvor, Hallett) explode the myth that the Hearings system is well understood by the people of Scotland. Not only is it not well understood, it is quite often misunderstood. It is very much a closed system: no information is released about children who appear at Hearings, press reporting is curtailed and Hearings are held in private. Although this is quite proper in terms of the privacy of the individual children whose cases are considered by Hearings, it leaves victims and members of the community with few places to raise questions, record complaints or contribute positively. In the cases of children who persistently offend, there may be many victims affected by the actions of one child, and many of these victims may be children themselves. Identifying a role for members of the community, including victims, is a major challenge to the Hearings system and should be further considered. Voluntary reparation schemes could play a positive part here.

22. A comprehensive information system which informs members of all sectors of the community in Scotland about the Hearings system and how they can contribute should be established.