Policy paper

Youth measures in the Police, Crime, Sentencing and Courts Bill: Equalities Impact Assessment

Updated 2 August 2023

Introduction

This document records the analysis undertaken by the Department to enable Ministers to fulfil the requirement placed on them by the Public Sector Equality Duty (PSED) as set out in section 149 of the Equalities Act 2010. The PSED requires the Minister to pay due regard to the need to:

• eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act
• advance equality of opportunity between people who share a protected characteristic and those who do not
• foster good relations between people who share a protected characteristic and those who do not

The protected characteristics are race, sex, disability, sexual orientation, religion and belief, age, marriage and civil partnership, gender reassignment, pregnancy and maternity.

Policy summary

The youth justice system has seen considerable successes over the past decade. The number of first-time entrants^{[footnote 1]} fell by 85% between 2008/09 and 2018/19, with an 18% fall from 2017/18 to 2018/19 alone.

Likewise, the number of sentencing occasions has fallen by 78% over the same period and fell by 16% between 2017/18 and 2018/19^{[footnote 2]}. The number of children sentenced to custody has fallen by 76% within the same ten-year period, resulting in a monthly average of less than 900 children in custody in 2018/19, and less than 800 in 2019/20^{[footnote 3]}.

However, challenges remain, as these overall reductions in volumes have disproportionately benefitted White children. The proportion of White children cautioned or sentenced has been steadily decreasing in the ten years since 2009/10, while the proportion of BAME children has increased, and the proportion of Black children in the youth justice system is now almost three times that of the general population^{[footnote 4]}.

The reoffending rate for children is the highest in the criminal justice system, particularly for those children sentenced to short periods in custody, and has consistently been highest for Black children over the last ten years^{[footnote 5]}. We recognise that community sentences can be more effective than custody at reducing reoffending^{[footnote 6]} and with these measures we intend to give the courts the tools they need to ensure that children can be diverted from custody to more effective community sentences while keeping the public safe.

We also believe that there are too many children in custody awaiting sentence or trial^{[footnote 7]}. While there are cases where remand to custody is necessary and proportionate, we believe that, where possible, children should be managed in the community. The legislative measures in this Bill form one part of a more significant piece of work to review the current use of remand for children.

For the minority of cases where a custodial sentence is required, we must ensure that courts also have the tools they need to pass appropriate sentences which properly reflect the culpability of a child and the seriousness of their offending. We will reform the most common youth sentence (the Detention and Training Order) to be simpler and fairer, and ensure that the provisions on minimum terms, minimum term reviews and release points for the most serious offenders are appropriate.

PSED aims

We have considered whether the proposed changes hinder or promote the need to eliminate unlawful discrimination, advance equality, and foster good relations.

Eliminate unlawful discrimination, harassment, victimisation and any other conduct prohibited by the Equalities Act 2010

Direct discrimination

Our assessment is that these measures are not directly discriminatory within the meaning of the EA 2010. This legislation will apply to all offenders regardless of protected characteristics and we do not consider that the changes would result in children being treated less favourably because of any protected characteristic.

Indirect discrimination

Indirect discrimination arises when an institution does something which appears to be neutral in terms of equality but which in terms of its impact particularly disadvantages people with a protected characteristic.

Based on the available data, and given that these changes can apply to any child convicted of an offence who is sentenced by the court, we believe that children who are older, Black, Asian, and Minority Ethnic (BAME) and male are more likely to be affected by these changes because they are over-represented in the youth justice system.

The changes to the Youth Rehabilitation Order aim to give the courts more confidence in their ability to act as a robust alternative to custody. We believe that wherever possible children should be diverted from custody: evidence shows that community sentences can be more effective at reducing reoffending^{[footnote 8]} and may have other benefits such as proximity to family. It is not yet clear what impact these changes will have on the demographics of children in custody, but they could result in White children disproportionately benefitting from being diverted from custody and, therefore, an increase in the proportion of BAME children given custodial sentences. We will continue to monitor the impact of these changes with these possibilities in mind.

The changes to custodial sentences are unlikely to increase the number of children sentenced to custody, but they may increase the length of sentences in some cases. Where age is a specific factor of the sentence, as with our changes to Detention at Her Majesty’s Pleasure (DHMP), older children are likely to be given longer sentences than younger children in most cases and will therefore be disproportionately affected. However, these changes were made with the specific intention to reflect the differences in maturity and development between older and younger children and we believe this impact is justified.

Our aim is to provide the court with simpler, more flexible sentencing options whilst at the same time making sure those who commit the most serious offences, in particular where those offences pose a risk to the public, serve an amount of time in custody which reflects the seriousness of their offending. While we recognise that there may be indirect impacts on children which certain protected characteristics, we believe these policies are a proportionate means of achieving our legitimate aim.

Discrimination arising from disability and duty to make reasonable adjustments

We do not consider that the measures require any further adjustments for disabled people over and above the ones already in place in courts and custodial settings. We will continue to ensure that reasonable adjustments continue to be made for those with disabilities (e.g. those with learning disabilities, and mental health issues) in the way the sentence implications are understood. The measures in place for reasonable adjustments within courts, custodial settings and support services will remain in place, and it is therefore unlikely that these changes will have any disproportionate impact on those with disabilities.

Harassment and victimisation

We do not consider there to be a risk of harassment or victimisation as a result of these legislative changes.

Advancing equality of opportunity

Consideration has been given to how these changes impact on the need to have regard for the need to advance equality of opportunity by meeting the needs of children who share a particular characteristic, where those needs are different from the need of those who do not share that particular characteristic. We do not consider that these changes would present an opportunity to further the achievement of this objective, but we will keep this under review for any opportunities to do so.

Fostering good relations

We do not consider that these changes will have a particularly significant impact on the achievement of this objective.

Monitoring and Evaluating

We recognise the ongoing nature of the equality duty and will review the feedback to this legislation in relation to equalities impacts. As we continue to develop youth justice policies in future, we will consider in detail the likely impacts on protected characteristics.

Decision Making

In conclusion, the assessments above indicate that these changes do nothing to hinder the PSED duties and represent a proportionate means to achieve a legitimate objective. Therefore, the decision is to proceed with the changes.

Data and evidence

The main source of information used for this analysis is data on Criminal Justice System (CJS) outcomes (specifically sentencing) by age, sex and ethnicity in the annual Criminal Justice System Statistics Quarterly (CJSQ), which is published every May^{[footnote 9]}. References are given where alternative sources have been used.

Overall Youth Justice System

There is over-representation of certain protected characteristics in the youth justice system as a whole. Males (85% of children receiving a caution or sentence in 2018/19) are over-represented relative to females; BAME groups are over-represented relative to their distribution in the general population (27% vs 18% in the general population) and youth offender cohorts tend toward the upper end of the age range covered by the youth justice system (77% of children receiving a caution or sentence were aged 15 or over in 2019)^{[footnote 10]}.

Although the number of sentenced children has fallen by 78% over the last decade (from 2008/09 to 2018/19^{[footnote 11]} ), the proportion of children sentenced for more serious (indictable) offences has not been consistent across protected characteristics. The proportion of those sentences involving White children has decreased from 73% to 65% over the last five years^{[footnote 12]}, while the proportion of Black children has risen from 14% to 20% over the same period.

There are no detailed data available for children on disability, sexual orientation, gender reassignment, marriage and civil partnership or pregnancy and maternity. While in most cases recorded locally, the religious affiliation of children in the criminal justice system is not collated or held nationally and there are therefore no central data available on the religion and beliefs of children in the youth justice system as a whole.

However, some related information has been made available. An analysis of Asset Plus data on sentenced children carried out by the Youth Justice Board^{[footnote 13]} reported that, of children sentenced to a Referral Order, Reparation Order, Youth Rehabilitation Order or a custodial sentence in 2018/19:

• for 71% there were Speech, Language and Communication concerns
• for 71% there were mental health concerns
• for 47% there were physical health concerns
• for 2% there were concerns regarding the young person being a parent

Community sentences: overview

In 2019, approximately 36% of children who received community sentences were from BAME backgrounds^{[footnote 14]} .

In keeping with trends across the youth justice system, the majority of children given community sentences are older, with 82% of children given community sentences in 2019 aged 15-17.

As with the youth justice system as a whole, males make up a higher proportion of those given community sentences. In 2019, 87% of children given community sentences were male, and of the children given Youth Rehabilitation Orders, 91% were male.

Youth Rehabilitation Orders

The Youth Rehabilitation Order (YRO) is a community sentence for children that includes 18 requirements from which the court can select (including curfews, activity, health, exclusion, electronic monitoring and education). Indicative findings from an MoJ study indicated that the YRO is currently more effective at reducing reoffending than custody, particularly short custody. These legislative measures aim to make the YRO a more effective and attractive alternative to custody.

We will make the following amendments to YROs:

• The curfew requirement will be amended to raise the maximum number of daily hours from 16 to 20.
• A standalone electronic monitoring requirement will be added to the list of available requirements. This change will allow for any restrictions on the use of this requirement to be piloted.
• The maximum length of the extended activity requirement of a YRO with Intensive Supervision and Surveillance will be extended from 180 days to 365 days. This change will be piloted.
• A mandatory location monitoring requirement will be added to YROs with Intensive Supervision and Surveillance. This change will be piloted.
• The age limit of the education requirement will be raised so that it is the same as the age of compulsory education and training, rather than compulsory school age.

Availability of data

Detailed data about sentenced children in the affected cohort are available for three of the nine protected characteristics – age, sex and ethnicity. We have used these data for our equality analysis. There are no data on protected characteristics of YROs with different requirements available; for this reason, all policies relating to YROs have been considered together.

Two separate approaches have been taken to explore these policies:

Approach 1: Affected Groups

The aim of this set of measures is to provide stronger alternatives to custody such that, where appropriate, children who would otherwise have received a custodial sentence may receive a community sentence. It is not possible to estimate the extent of this impact, or which children this is most likely to affect. For the purposes of this equality analysis we have assumed that the affected group are those children who currently receive short custodial sentences, defined here as 6 months or less (i.e. it is from this cohort of children that may be diverted away from custody and into the community as a result of these measures). The unaffected group is children receiving determinate custodial sentences of greater than 6 months.

In 2019, there were 515 custodial sentences given to children of 6 months or less (affected group) and 676 sentences of greater than 6 months but less than life (unaffected group).

The aim of these measures is to provide the courts with more flexible and robust alternatives to custody for all children.

Table 1. Number of determinate custodial sentences given to children in 2019 by protected characteristics, where affected group is children who received a determinate custodial sentence of 6 months or less and the unaffected group is those who received determinate sentences of over 6 months

Source: CJSQ Dec 2019; Sentencing Data Tool

Sex	Affected	%	Unaffected	%
Male	465	94%	650	98%
Female	32	6%	14	2%
Unknown	18		12
Total Known	497		664

Ethnicity	Affected	%	Unaffected	%
White	160	54%	271	58%
Black	88	30%	117	25%
Asian	16	5%	32	7%
Mixed	21	7%	37	8%
Chinese and other	10	3%	14	3%
Not recorded	220		205
Total Known	295		471

Age	Affected	%	Unaffected	%
10-11	0	0%	0	0%
12-14	48	9%	25	4%
15-17	466	91%	651	96%
Not known (Children)	1		0
Total Known	514		676

Sex

Whilst boys are generally disproportionately represented in the number of children who receive custodial sentences, girls are slightly over-represented in the affected compared to the unaffected group (6% vs. 2%) and therefore may disproportionately benefit from this measure.

Ethnicity

Overall numbers of children in custody have decreased over the last 10 years, although the numbers of White children have been decreasing at a higher speed than those of BAME children.

Where ethnicity was known, the proportion of White children in the affected group (54%) is slightly lower than in the unaffected group (58%), driven predominantly by a higher proportion of Black children in the affected group (30% vs. 25%). Therefore, Black children may disproportionately benefit from these changes.

However, academic evidence ^{[footnote 15]} suggests that BAME men may be assessed as higher risk than White men, which may mean BAME children are less likely to receive community sentences as an alternative to custody and benefit from these proposals.

Age

91% of children in the affected group were 15-17 years old and 9% 12-14, meaning that younger children are slightly over-represented in the affected group compared to the unaffected group (96% 15-17; 4% 12-14) and so may be disproportionately impacted by these measures.

Approach 2: Affected Groups

The second approach considers the impact on those who would already receive YROs and may now be subject to different measures. It is not possible to estimate which children who receive YROs are more or less likely to be impacted by these changes; therefore, for this equalities analysis, the affected group is considered as all children who receive YROs, and the unaffected group those who receive other community sentences (referral orders or reparation orders).

In 2019, there were 3,894 YROs given to children (affected group), and 7,983 children sentenced to other community sentences (unaffected group).

Table 2. Number of community sentences given to children in 2019 by protected characteristics, where affected group is children who received a YRO, and unaffected groups are children sentenced to referral orders or reparation orders

Source: CJSQ Dec 2019; Sentencing Data Tool

Sex	Affected	%	Unaffected - Referral Order	%	Unaffected - Reparation Order	%
Male	3,484	91%	6,594	85%	56	85%
Female	356	9%	1,145	15%	10	15%
Unknown	54		178		-
Total Known	3,840		7,739		66

Ethnicity	Affected	%	Unaffected - Referral Order	%	Unaffected - Reparation Order	%
White	1,315	62%	2,376	65%	16	67%
Black	462	22%	656	18%	5	21%
Asian	123	6%	266	7%	-	0%
Mixed	179	8%	268	7%	3	13%
Chinese and other	29	1%	83	2%	-	0%
Not recorded	1,786		4,268		42
Total Known	2,108		3,649		24

Age	Affected	%	Unaffected - Referral Order	%	Unaffected - Reparation Order	%
10-11	-	0%	15	0%	-	0%
12-14	466	12%	1,620	20%	7	11%
15-17	3,428	88%	6,281	79%	59	89%
Not known (Children)	-		1		-
Total Known	3,894		7,916		66

Sex

Boys are generally disproportionately represented in the number of children who receive community sentences. They are also disproportionately represented in the affected group (91% of YROs) compared to the unaffected group (85%), and therefore may be disproportionately impacted by these measures.

Ethnicity

Where ethnicity was known, the proportion of White children in the affected group (62%) is slightly lower than in the unaffected group (65%), whereas the proportion of Black children is slightly higher (22% of the affected group compared to 18% of the unaffected group).

Age

Older children are disproportionately represented in the affected group (88% of YROs in 2019 given to 15-17 year olds and 12% to 12-14 year olds) compared to the unaffected group (79% to 15-17, 20% to 12-14).

Equalities Consideration

These data suggest that younger age groups, Black children and girls are disproportionately represented in the cohort currently sent to custody who may be more likely to be diverted to community as a result of these measures. However, it should be considered that decisions are made on a case-by-case basis, and evidence suggests Black individuals may be perceived as higher risk, meaning they may be less likely to benefit from the changes. Of those that currently receive community sentences, older children and boys are more likely to be impacted by the changed measures.

Although children with certain protected characteristics are over-represented in the affected groups, we believe that these changes are necessary to provide stronger alternatives to custody and we do not think that any offender will be disadvantaged due to a protected characteristic as a result.

Reparation Order

The Reparation Order is a non-custodial sentence that aims to help children understand the effect of their crime on the victims. The Order requires offenders to make practical amends to those harmed by the offence – either a victim or another affected party, so long as they have consented, or to the community.

Use of the Reparation Order has dropped significantly over the past decade. Reparation Orders are now the least-used disposal and have a higher rate of reoffending than Referral Orders, cautions and fines.

The current sentencing framework offers other avenues for reparation, including Referral Orders and YROs. These both provide a fuller package with more flexibility than the Reparation Order, which cannot be given in conjunction with a Referral Order or a YRO, thereby significantly restricting the situations in which it can be used. We therefore intend to abolish the Reparation Order to redirect sentencers to other, more effective community sentences

Availability of data

Data about children sentenced to community orders are available for three of the nine protected characteristics – age, sex and ethnicity. However, given the small number of reparation orders given each year, it is not possible to draw meaningful comparisons between affected and unaffected groups. See Table 2 for a summary of protected characteristics of those who received reparation orders in 2019.

Equalities consideration

Whilst data are limited and very few children currently receive reparation orders, their removal may disproportionately impact girls. However, because this group of children will be redirected to other community sentences that include reparation, we do not believe that they will be disadvantaged as a result of this proposal.

Remand

We have seen significant changes in the youth custodial remand population in recent years. Following implementation of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012, which introduced a new youth remand framework for 10 to 17-year olds, there was a steady decline in the youth custodial remand population, leading to a 46% reduction in the average monthly population between 2012/13 and 2016/17^{[footnote 16]}.

However, there have been recent increases in custodial remand use. Between 2016/17 and 2018/19 there was a 33% increase in the average monthly youth custodial remand population, while the overall youth custodial population (excluding those on remand) decreased by 10% over the same period^{[footnote 17]}.

The changes made to remand decision-making through LASPO, as well as general practice changes in the youth justice system, have focused on the principle of using custody as a last resort for children. This has led to reductions in custody numbers where typically those who commit the more serious, often violent, offences are the ones who end up in custody.

In this Bill, the tests courts must apply to determine whether to remand a child into custody will be amended and a statutory requirement for the courts to record the reasons for their decision will be introduced. The Bill amends the ‘real prospect’ test and the ‘necessity condition’, so that remand in Youth Detention Accommodation (YOI, STC or SCH) can only be imposed for the most serious cases, where a custodial sentence appears the only option and the risk posed by the child cannot be safely managed in the community. The Bill will also address the courts’ current lack of power to remand a child to local authority or youth detention accommodation in cases where an order has been imposed previously.

Availability of data

Data on instances of remand by the protected characteristics of sex, ethnicity and age are available for 2018/19 from the annual YJB Youth Justice Statistics. The purpose of these remand measures is to ensure that remand to youth detention accommodation (YDA) is used only when absolutely necessary.

Table 3. Number and proportions of remands by type^{[footnote 18] [footnote 19]} , given by the courts, by age, gender and ethnicity, year ending March 2019

Source: Youth Justice Statistics 2018/19, Supplementary Table 6.1

Sex	Remand to YDA	%	Remand to Community	%	Remand to Bail	%
Male	1,184	97%	612	95%	8,060	88%
Female	37	3%	33	5%	1,094	12%
Unknown	-		-		5
Total Known	1,221		645		9,154

Ethnicity	Remand to YDA	%	Remand to Community	%	Remand to Bail	%
White	633	52%	379	59%	6,119	69%
Black	298	25%	128	20%	1,289	14%
Asian	67	6%	48	7%	457	5%
Mixed	181	15%	75	12%	863	10%
Other	33	3%	13	2%	202	2%
Unknown	9		2		229
Total Known	1,212		643		8,930

Age	Remand to YDA	%	Remand to Community	%	Remand to Bail	%
10-14	81	7%	57	9%	1,378	15%
15	200	16%	96	15%	1,674	18%
16	307	25%	180	28%	2,522	28%
17	633	52%	312	48%	3,585	39%
Total Known	1,221		645		9,159

Ethnicity

Around one third (34%) of all remand episodes, including remand on bail, involved BAME children in 2018/19. This figure rises to 48% for remands to youth detention accommodation (YDA)^{[footnote 20]}.

Over the ten years between 2008/09 and 2018/19, the proportion of children remanded to YDA from a White background (where ethnicity is known) has seen a general downward trend. The proportion of children remanded to YDA from a Black background has fluctuated over the same time period but has seen an overall increase, accounting for a third (33%) of children remanded in youth custody in 2018/19, an increase compared to 22% in 2008/09^{[footnote 21]}.

Age

Custodial remand is much more likely for older age groups than for younger age groups. In the year ending March 2019, 10 to 14-year olds only made up 7% of the average monthly youth custodial remand population, with 15-year olds making up 16%, 16-year olds 29%, and 17-year olds 48%^{[footnote 22]}.

Gender

For remands given in the year ending March 2019, most episodes (89%) involved boys, rising to 97% for remands to youth detention accommodation^{[footnote 23]}.

Equalities consideration

The data above show that Black children are disproportionately represented in the youth custodial remand population. Remand decisions are made on a case-by-case basis and evidence suggests Black individuals may be perceived as a higher risk and therefore less likely to benefit from these changes. However, it is important to safeguard judicial discretion in order to balance the welfare of children and public protection and we believe the changes we are making will not lead to children being disadvantaged based on protected characteristics.

Research into the drivers of ethnic disproportionality in remand and sentencing outcomes has recently been commissioned by the Youth Justice Board and will help inform the MoJ’s review into youth custodial remand.

Custodial sentences: overview

MoJ data analysis found that, in 2016, after controlling for age, gender, offence group and criminal history, BAME children were more likely to be sentenced to custody than their White counterparts (Black by 71%, Asian by 86% and Mixed ethnicity by 35%)^{[footnote 24]}.

While all ethnic groups have seen a decrease in the average custody population over the last ten years, they have been falling at different rates which has led to a change in the proportion of each ethnic group. The proportion of custodial sentences given to White children has fallen from 76% in 2009 to 56% in 2019, while the proportion of BAME children has increased from 24% to 44% over the same period. Black children have increased the most within this group, and now account for 28% of children given custodial sentences in 2019^{[footnote 25]}.

In keeping with trends across the youth justice system, males are far more likely to be given custodial sentences than females, and older children more likely than younger children. 96% of children given custodial sentences in 2019 were male, and 94% were between the ages of 15 and 17.

Changes to the Detention and Training Order

The DTO is the most common custodial sentence for children. Currently a DTO can only be given for a fixed length (4, 6, 8, 10, 12, 18, or 24 months). This restricts the court’s decision on the most appropriate length and can impact on how time spent on remand or on bail, and reductions made for guilty pleas, are taken into account. This is because there is not always a DTO length that directly fits once remand, electronically monitored bail and/or guilty pleas have been considered and instead the court must sentence to one of the fixed lengths. Other elements also mean that there are unnecessary inconsistencies between the DTO and other youth sentences.

We therefore intend to amend the DTO to:

• Allow the courts to pass any length of DTO between 4 and 24 months, to better take into account time spent on remand, qualifying bail and reductions for early guilty pleas.
• Ensure that where an offender is serving a sentence of detention under section 250 of the Sentencing Code, detention at Young Offenders Institute or an adult standard determinate sentence and is then sentenced to a DTO, the offender can benefit from early release from both sentences.

Availability of data

Data about children sentenced to DTOs and other custodial sentences are available for three of the nine protected characteristics – age, sex and ethnicity.

However, the group most affected by these measures will be those sentenced to DTOs who receive early guilty pleas and, as a result of these measures, may receive a reduced discount, as well as those sentenced to DTOs after spending time on remand, where they may now spend longer in the community as a result of time on remand only being deducted from time to serve in custody. Data are not available for these affected and unaffected groups.

Sex

In 2019, 909 males were given a DTO compared to 37 females. Over the past 10 years, the number of females given a DTO has declined by 89% whereas the number of males has declined by around 78%.

The removal of the fixed DTO length could lead to an increase in custodial length (where there is an early guilty plea). This could impact more on males as they are more likely than females to be given a DTO.

Ethnicity

In 2019, there were 350 White children given a DTO compared to 271 BAME CYP (where ethnicity is known). Over the past 10 years the number of White children given a DTO has declined by 86%, but for BAME children the rate of decline is lower at 63%. This means that the overall proportion of BAME children given a DTO has increased over the same period even though volumes have declined for both White and BAME children.

The removal of fixed lengths could result in lower reductions for guilty pleas (and therefore longer sentences) because courts will be able to apply a more accurate reduction. The impact this will have on BAME children is unclear: the Lammy Review found that BAME defendants are less likely to plead guilty^{[footnote 26]}, and would therefore be less likely to be given longer sentences for this reason. However, BAME children are also disproportionately represented in the remand population (see Table 3) and would be more affected by the ability for more accurate reductions based on time served on remand.

Age

In 2019, there were 60 children aged 12-14 given a DTO compared to 855 aged 15-17. Over the past 10 years the percentage of decline for the two groups has been very similar, though over the past year the decline has been greater for the older age group.

The removal of the fixed DTO length could lead to an increase in custodial length (where there is an early guilty plea). This could impact more on older children as they are more likely than younger children to be given a DTO.

Equalities consideration

We have considered whether there will be any disproportionate impacts from this proposal. While some children with certain protected characteristics are over-represented in the affected group, these changes are necessary to achieve consistency with other parts of the sentencing framework and we do not think that any child will be disadvantaged due to a protected characteristic as a result.

Release from Determinate Sentences of 7 Years or more for certain serious offences

This change will amend the automatic release point for determinate custodial sentences of 7 years or more under section 250 of the Sentencing Act for the most serious violent offences and all serious sexual offences. The automatic release point in such cases will change from half to two thirds of the sentence.

This will also allow automatic release to be removed from those who receive a section 250 sentence and are assessed while in custody to be a serious risk (this applies to offenders who turn 18 and are transferred to the adult custodial estate before the halfway point of their sentence).

This will result in children who receive these sentences spending longer in custody, which we believe is necessary to ensure that the public are protected and that the sentence is commensurate with the seriousness of these offences.

Availability of data

Detailed data about sentenced children in the affected cohort are available for three of the nine protected characteristics – age, sex and ethnicity. We have used these data for our equality analysis.

However, there are only a small number of sentences each year expected to be impacted by this policy and so it is not possible to draw robust conclusions. The data have been presented for completeness, but this caveat should be considered throughout. Data are presented where known, therefore where sex, ethnicity or age are not stated or unknown they are omitted from analysis.

Affected Groups

The proposed change will have a direct impact on children who are

• convicted of one of the selected offences (listed in Annex A); and
• receive a section 250 sentence of 7 years and over but less than life.

In 2019, there were just 24 sentences that meet the criteria of this policy, therefore it is not possible to draw robust conclusions. For this reason, data have been collated over three years (2017-2019), however, this only brings the number of sentences to 50 and so the analysis is still severely limited.

For the purposes of this analysis, we have compared those affected by this policy to those who received a section 250 sentence between 2017 and 2019 but would not be affected by this policy. Between 2017 and 2019, there were 765 section 250 sentences not in scope of the policy, these are either sentences for other offences (512 instances), or for the specified offences but where the sentence length is less than 7 years (253 instances).

Table 4. Number of Section 250 sentences between 2017 and 2019 by protected characteristics, where affected group is Section 250 sentences for the selected offences with a sentence length of 7 or more years, and the unaffected group is section 250 sentences that do not meet these criteria

Source: CJSQ Dec 2019; Sentencing Data Tool

Sex	Affected	%	Unaffected	%
Male	49	98%	744	97%
Female	1	2%	21	3%
Unknown	-		-
Total Known	50		765

Ethnicity	Affected	%	Unaffected	%
White	17	43%	299	55%
Black	16	40%	141	26%
Asian	3	8%	46	8%
Mixed	3	8%	47	9%
Chinese and other	1	3%	12	2%
Not recorded	10		220
Total Known	40		545

Age	Affected	%	Unaffected	%
12-14	-	0%	46	6%
15-17	50	100%	719	94%
Not known (Children)	-		-
Total Known	50		765

Sex

Boys are similarly represented in the affected and comparator group, with 49 out of the 50 (98%) sentences in the affected group being for males and 97% in the unaffected group (97%).

This does, however, highlight the existing disproportionality in children sentenced to custody generally. As such, any measure that impacts children sentenced to custody is likely to disproportionately impact boys.

Ethnicity

Where ethnicity was known, the proportion of White children in the unaffected group (55%) is higher than in the affected group (17 out of 40 sentences; 40%). This is primarily driven by a greater proportion of Black children in the affected group (16 out of 40; 40%) compared to the unaffected group (26%), though the small sample size of the affected group should be noted.

This means that of all children who receive section 250 sentences, Black children may be disproportionally impacted by this policy change.

Age

All children in the affected group were 15-17 years old at the time of sentencing, in the unaffected group, 94% were 15-17 and 6% 12-14.

This suggests that the measure could have a disproportionate impact on older children.

Equalities Consideration

We have considered whether there will be any disproportionate impacts from this proposal. The data above show that Black and older children are disproportionately represented in the affected group; however, we believe these changes are necessary to ensure that the sentence provides justice for victims, reflects the seriousness of the crime and protects the public.

Detention at Her Majesty’s Pleasure (DHMP) minimum terms and reviews

Detention at Her Majesty’s Pleasure is a mandatory life sentence for murder committed as a child. The current minimum term (tariff) starting point is 12 years in all cases. We intend to amend the starting points to ensure that the seriousness of the offence is taken into account and there is less of a gap between older children and young adults.

Starting points for children will be divided into three age groups: 10 – 14 years old, 15 – 16 years old and 17 years old, and will be subject to starting points based on 50%, 66% and 90% of the adult equivalent starting point respectively.

The changes being made to DHMP minimum term starting points could lead to some children who are sentenced to DHMP spending more time in custody. However, because DHMP is a mandatory sentence and these changes will only affect the length of time spent in custody, not the situations in which the sentence is used, they are unlikely to result in any changes to the current demographic proportions of DHMP sentences.

We will also be changing the structure of minimum term reviews to reduce opportunities for those who are serving a DHMP sentence for murder committed as a child to have their minimum term reviewed:

• The minimum term review mechanism will be enshrined in legislation rather than in policy as it is now.
• Restrictions will be introduced to remove eligibility for continuing reviews past the age of 18. Those sentenced to DHMP will therefore be eligible for only a single review at the midway point of their sentence and no further reviews once they have passed 18.
• Restrictions will be introduced to remove eligibility for any minimum term reviews for those sentenced at age 18 or above.

Availability of data

Whilst there are published data regarding the volume of DHMP sentences, this does not include information on minimum term lengths, details of the offence that would enable their categorisation, and age at trial is only included, not age at time of offence. Therefore, it has not been possible to construct affected and unaffected groups for comparison.

Changes to the review process will have a greater impact on older children, especially those sentenced when over 18 as they will no longer be eligible for review. However, the volume of DHMP sentences is small, and therefore it is not possible to make a meaningful comparison of the characteristics of children sentenced before and after turning 18.

Between 2017 and 2019 there were 101 DHMP sentences, all were given to boys, with the majority (61%) to Black children, 25% given to White children, 7% Mixed, 3% Asian and 4% Chinese and Other. The majority of DHMP sentences between 2017 and 2019 were given to 15-17 year olds (59%), with 39% to 18-20 year olds (offences committed when under-18), and 2% to 12-14 year olds^{[footnote 27]}.

Equalities Consideration

We believe that these changes are justified because they allow the seriousness of the crime, based on the principles set out in existing legislation for adults, to play a greater role in determining the minimum term and would introduce a more gradual shift from youth to adult sentences. We do not think any child will be disadvantaged due to a protected characteristic as a result of these proposals.

Annex A: Offences covered by the change to automatic release points for determinate custodial sentences of 7 years or more

Part 1: Violent Offences

Manslaughter

Soliciting murder

[an offence under section 4 of the Offences against the Person Act 1861 (c. 100)]

Wounding with intent to cause grievous bodily harm

(an offence under section 18 of the Offences against the Person Act)

Attempted murder, conspiracy to commit murder, incitement to commit murder.

(An offence under Part 2 of the Serious Crime Act 2007 in relation to which murder is the offence (or one of the offences) which the person intended or believed would be committed.)

Part 2: Specified sexual offences

Rape

(An offence under section 1 of the Sexual Offences Act 1956 (c. 69)

Intercourse with girl under 13

(An offence under section 5 of the Sexual Offences Act 1956)

Incest by a man with a girl under 13

(An offence under section 10 of the Sexual Offences Act 1956)

Permitting girl under thirteen to use premises for intercourse

(An offence under section 25 of the Sexual Offences Act 1956)

Rape

(An offence under section 1 of the Sexual Offences Act 2003 (c. 42)

Assault by Penetration

(An offence under section 2 of the Sexual Offences Act 2003)

Causing a person to engage in sexual activity without consent

(An offence under section 4 of the Sexual Offences Act 2003 where it is alleged that the activity caused involved penetration within subsection (4)(a) to (d) of that section)

Causing a child under thirteen to engage in sexual activity

An offence under section 8 of the Sexual Offences Act 2003 where it is alleged that an activity involving penetration within subsection (2)(a) to (d) of that section was caused

Sexual activity with a person with a mental disorder impeding choice

An offence under section 30 of the Sexual Offences Act 2003

Causing or inciting a person with a mental disorder impeding choice to engage in sexual activity

An offence under section 31 of the Sexual Offences Act 2003

Inducement, threat or deception to procure sexual activity with a person with a mental disorder

(An offence under section 34 of the Sexual Offences Act 2003)

Causing a person with a mental disorder to engage in or agree to engage in sexual activity by inducement, threat or deception

(An offence under section 35 of the Sexual Offences Act 2003)

Paying for sexual services of a child (where victim is <13, penetrative)

An offence under section 47 of the Sexual Offences Act 2003

An offence under section 2 of the Modern Slavery Act 2015 (human trafficking) committed with a view to exploitation that consists of or includes behaviour within section 3(3) of that Act (sexual exploitation)

Aiding, abetting, counselling or procuring the commission of the previous offences in Part 2.

(2) An attempt to commit such an offence.

(3) Conspiracy to commit such an offence.

(4) Incitement to commit such an offence.

(5) An offence under Part 2 of the Serious Crime Act 2007 in relation to which an offence specified in the preceding paragraphs of part 2 is the offence (or one of the offences) which the person intended or believed would be committed

 

1. First time entrants to the criminal justice are classified as offenders, resident in England and Wales, who received their first reprimand, warning, caution or conviction, based on data recorded by the police on the PNC. From Ministry of Justice, Youth Justice Statistics Glossary. ↩

2. YJB/MoJ (2020). Youth Justice Statistics: 2018 to 2019. ↩

3. HMPPS (2020). Youth Custody Report: September 2020. Table 2.1: Population (under 18). ↩

4. YJB/MoJ (2020). Youth Justice Statistics: 2018 to 2019. ↩

5. Proven reoffending rates for children are significantly higher than for adults with 38% of under 18s going on to reoffend compared to 29% of adults (2017/2018 cohort) and for children leaving custody, the rate is even higher at 69% proven reoffending. Sources: MoJ (2020). Proven Reoffending Tables (annual average) January 2018 to March 2018; YJB/MoJ (2020). Youth Justice Statistics: 2018 to 2019 ↩

6. MoJ (2019). Impact of sentencing on proven reoffending for young offenders in England and Wales, 2012 to 2014 ↩

7. Across 2018/19, a monthly average of just over 240 children were held in youth custody on remand, accounting for 28% of all children in youth custody. Source: YJB/MoJ (2020). Youth Justice Statistics: 2018 to 2019. ↩

8. MoJ (2019). Impact of sentencing on proven reoffending for young offenders in England and Wales, 2012 to 2014 ↩

9. https://www.gov.uk/government/statistics/criminal-justice-system-statistics-quarterly-december-2019 ↩

10. YJB/MoJ (2020). Youth Justice Statistics 2018/19 ↩

11. YJB/MoJ (2020). Youth Justice Statistics 2018/19 ↩

12. A 10-year comparison is not available ↩

13. YJB/MoJ (2020). Assessing the needs of sentenced children in the Youth Justice System 2018/19 ↩

14. https://www.gov.uk/government/statistics/criminal-justice-system-statistics-quarterly-december-2019; Proportion is given of cases where ethnicity is known. ↩

15. Mullen, J. Young, L. 2014. Improving outcomes for young black and/or Muslim men in the Criminal Justice System. ↩

16. Youth Justice Statistics: 2018 to 2019, Supplementary Table 6.3 ↩

17. Youth Justice Statistics: 2018 to 2019, Supplementary Table 6.3 ↩

18. The table presents the number of remand decisions made. Only the most restrictive remand decision applied during the course of the court proceeding is presented in this chapter. Where a child was given more than one remand decision during the court process, only the most restrictive is shown. For example, if a child was given unconditional bail and then conditional bail during the court proceeding leading to sentencing then the conditional bail would be counted as it is the most restrictive remand decision given. ↩

19. Only sentencing occasions where a child received a youth caution or court conviction are counted. ↩

20. Youth Justice Statistics: 2018 to 2019. Supplementary Table 6.1. ↩

21. Youth Justice Statistics: 2018 to 2019. Supplementary Table 6.3 ↩

22. Youth Justice Statistics: 2018 to 2019. Supplementary Table 6.3 ↩

23. Youth Justice Statistics: 2018 to 2019. Supplementary Table 6.1 ↩

24. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/669095/Race_and_the_CJS-youth-amended-01122017.pdf While a number of associations were observed between the likelihood of custodial sentencing and a range of offence / offender characteristics, it is important to note that the analysis did not take into account all factors which can be involved in making sentencing decisions e.g. offender plea or any aggravating/mitigating factors. ↩

25. https://www.gov.uk/government/statistics/criminal-justice-system-statistics-quarterly-december-2019; Sentencing Data Tool 2019; proportions are given of the population where ethnicity is known. ↩

26. The Lammy Review (2017) ↩

27. MoJ (2020). Criminal justice system statistics quarterly: December 2019; Sentencing Data Tool. Volumes of DHMP sentences can be identified from this tool by applying the following filters: Detailed Sentence = S90-92 PCC(s) Act 2000, Offence = Murder, Custodial Sentence Length = Life Sentence. ↩