1. Introduction

A combination of international children’s rights instruments and regional human rights protection framework has ensured the protection of children in custody. Whilst the United Kingdom has ratified the Convention on the Protection of the Rights of the Child, its provisions have not been implemented directly into domestic law.[1] Nevertheless, domestic legislation providing for the safeguarding of young offenders in combination with the Human Rights Act 1998 has ensured that their rights are safeguarded.[2] The recent election campaign brought once again to the forefront, the debate over the relationship between the European Court of Human Rights and the UK Parliament.[3] In this article, the authors seek to ascertain whether the proposed repeal of the Human Rights Act 1998 will disadvantage young offenders and, specifically, whether it will compromise their right to education and training whilst in custody, which is designed to enable their rehabilitation and (re)integration into society post-release.

2. Aims of the Juvenile Justice System

Two principles should guide how young offenders are sentenced in England and Wales. The first is the child’s welfare. Section 44(1) of the Children and Young Persons Act 1933 provides at s.44(1) states that:

Every court in dealing with a child or young person who is brought before it, either as an offender or otherwise, shall have regard to the welfare of the child or young person, and shall in a proper case take steps for removing him from undesirable surroundings, and for securing that proper provision is made for his education and training.

This provision makes explicit reference not only to welfare but to securing the child or young person’s educational and training needs. Education and training are seen as central to providing welfare. Section 44(1) co-exists with s.37(1) of the Crime and Disorder Act 1998: ‘It shall be the principal aim of the youth justice system to prevent offending by children and young persons’.

The Crime and Disorder Act 1998 introduces a hierarchy by prioritising the reduction of crime. However, a number of means could be adopted if one sought to use punishment as a means to reduce future offending. One could, for example, seek to impose a harsh punishment in the hope that it would deter either the young offender or others thinking of committing offences or, alternatively, one could imprison a prolific offender. One justification for punishment effectively combines both welfare and crime reduction goals. Rehabilitation seeks to reduce offending by addressing the factors which have influenced prior decisions to offend. Catering for the child or young person’s educational and training needs could be vital in this regard.

Neither section states that the purpose of the youth justice system is to punish the offender.[4] A fuller list of objectives was provided in the Criminal Justice Act 2003 – and this did include punishment – but this has not been brought into force.[5] However, although retribution is not an official aim of youth justice, it will be shown later that notions of offence-seriousness are taken into account when determining a proportionate penalty, whether custodial or non-custodial.

3. The Role(s) of Work in the Juvenile Justice System

The role and purpose of work in the penal system is complex and has evolved. In the English context the policy and academic debate has revolved around work-based sanctions and vocational provision for adult offenders.[6] This article represents the first scholarly attempt to theorise the role of work in the juvenile justice system, particularly in a rights-based context. Historically work was seen purely in terms of punishment; there was no intrinsic value, indeed, the work was often designed to be futile and physically demanding. The most obvious historical development is that there has been a move, at least in the British context, away from meaningless labour towards work which is either of a personal benefit to the offender (say by increasing his vocational skills) or to the community through work which is reparative in nature. One of the reasons why there is a paucity of research on work and juvenile offenders is that the bulk of work-related penalties are imposed on adults. The next section shows the difficulties of imposing work in the community for young offenders. By contrast, community sentences for adults often contain a condition that the offender undertakes unpaid work and adult prisoners sometimes have the opportunity to gain valuable skills undertaking work or training in prison.

This tension between work as punishment and work as rehabilitation, or, as the authors prefer, work as enabler, is also evident in youth justice. The stated aims of youth justice, articulated in the previous section, would suggest that the suitability of work should be determined with regards to the welfare of the young person and the potential that the work would have in reducing crime. There is no doubt that the provision of meaningful work could satisfy these aims.

It will be recalled from the previous section that the statutory basis for youth justice makes no specific mention of punishment as a purpose. The next section will document that official guidance contradicts this with regards to one work-based sanction where it is stated that punishment is paramount and rehabilitation secondary. This is concerning as it suggests that official policy is being ignored. It possibly forgets (unintentionally) an important point of penal theory: punishment, self-evidently, cannot justify punishment. Retribution can potentially justify punishment as can rehabilitation but that does not mask the fact that a sanction is being imposed as a consequence that an individual has violated the criminal law. Even if the purpose is to rehabilitate an offender (or, for that matter, to deter him from future offending or to incapacitate him in order to protect the public) the sanction is inherently punitive. For the purposes of this article, when a sanction is justified on the basis of punishment, it will be assumed that the penalty is to be justified on a retributive basis.

3.1 Work as Punishment

In a non-custodial setting, work can form the basis of a sentence imposed by a court, albeit in carefully and narrowly defined circumstances. The name of the sentence would suggest a direct link between work and rehabilitation. The Youth Rehabilitation Order contains one or more of the following requirements:

· Supervision;

· Activity;

· Programme;

· Unpaid work;

· Curfew;

· Attendance centre;

· Education;

· Mental health treatment;

· Residence;

· Local authority residence;

· Drug treatment;

· Drug testing;

· Prohibited activity exclusion;

· Intensive supervision and surveillance.

Unpaid work can, therefore, constitute all or part of a community-based penalty for a young person, however there are additional requirements that must be satisfied. An Unpaid Work requirement is only available for offenders aged 16 and 17 at the time of their conviction. The number of hours which the offender is required to work is specified in the order and must be for between 40 and 240 hours. Courts do not specify the exact work to be undertaken, this is determined by a Youth Offending Team or the probation service. Finally, an Unpaid Work requirement can only be imposed if the court is satisfied that the young person is suitable to perform work and that suitable work is available for the offender to undertake in the local area.

The Unpaid Work requirement would appear aligned with the overall aims of the youth justice system, particularly with regard to ensuring the welfare of the child through the provision of education and training.[7] It, therefore, comes as a surprise that the Youth Justice Board see rehabilitation as of secondary concern:

‘An Unpaid Work Requirement is a vehicle for repairing harm to the young person’s community in a constructive and demanding way. It is viewed first and foremost as a punishment, with the rehabilitation of the young person a secondary, although important consideration.’[8]

Neither reparation nor punishment are to be found in the statutory aims of youth justice. Both do feature in s.142A of the Criminal Justice Act 2003 (amongst other aims) but this section is not in force. Regardless, it is telling that the Youth Justice Board perceive Unpaid Work as punishment. This emphasis changes when the young person receives a custodial sentence.

3.2 Work as Rehabilitation

The position documented above shows a disjuncture between the stated objectives of youth justice – namely the welfare of the young person and the reduction of offending – and the idea that work should be used primarily as a form of punishment. Young people sentenced to a custodial sentence are also given education and, in some cases, vocational training, but here the confinement associated with imprisonment represents the punishment and the education and/or vocational provision is designed specifically to enable the transition from custody to a law-abiding future. The law governing when someone aged under 18 can be sentenced to custody differs in material ways from the way in which adults[9] and those aged between 18 and 20 inclusive[10] can receive imprisonment. The primary means to imprison someone aged under 18 is by imposing a detention and training order. This is governed by the Powers of Criminal Courts (Sentencing) Act 2000, s.100:

(1) Subject to sections 90 and 91 above, sections 226 and 226B of the Criminal Justice Act 2003, and subsection (2) below, where –

(a) a child or young person (that is to say, any person aged under 18) is convicted of an offence which is punishable with imprisonment in the case of a person aged 21 or over, and

(b) the court is of the opinion that subsection (2) of section 152 of the Criminal Justice Act 2003 applies or the case falls within subsection (3) of that section, the sentence that the court is to pass is a detention and training order.

(2) A court shall not make a detention and training order –

(a) in the case of an offender under the age of 15 at the time of the conviction, unless it is of the opinion that he is a persistent offender;

(b) in the case of an offender under the age of 12 at that time, unless –

(i) it is of the opinion that only a custodial sentence would be adequate to protect the public from further offending by him; and

(ii) the offence was committed on or after such date as the Secretary of State may by order appoint.

(3) A detention and training order is an order that the offender in respect of whom it is made shall be subject, for the term specified in the order, to a period of detention and training followed by a period of supervision.

There are several points to note here. First, the offence has to be of sufficient gravity that a non-custodial option cannot be justified. This is determined according to s.152 of the Criminal Justice Act 2003 which provides such a threshold for adult offenders. Second, if the offender is under the age of 15, a detention and training order can only be imposed if he is a persistent offender. It follows that it cannot be imposed on a first-time offender aged under 15 even if he has committed a very serious offence. If the offender is under the age of 12, the criteria are yet more stringent: a detention and training order can only be imposed if ‘only a custodial sentence would be adequate to protect the public from further offending by him’ and the offence has to have been committed on or after such date as the Secretary of State may order. As no date has been ordered, it follows that a detention and training order cannot be imposed on an offender under the age of 12. What this means is that the sentence can only be imposed for sufficiently serious offences and, if the offender is under the age of 15, where the individual has offended before. Finally, the criteria make no reference to the educational or vocational needs of the young person, despite the word ‘training’ in the title of the order.

The courts have another means of imposing custody if the offence is particularly serious. The Powers of Criminal Courts (Sentencing) Act 2000 provides at s.91:

(1) Subsection (3) below applies where a person aged under 18 is convicted on indictment of –

(a) an offence punishable in the case of a person aged 21 or over with imprisonment for 14 years or more, not being an offence the sentence for which is fixed by law; or [Various offences are listed in s.1(b), (c), (d) and (e), s.1(A), s.1(B) and s.1(C)]

(2) [Repealed]

(3) If the court is of the opinion that neither a youth rehabilitation order nor a detention and training order is suitable, the court may sentence the offender to be detained for such period, not exceeding the maximum term of imprisonment with which the offence is punishable in the case of a person aged 21 or over, as may be specified in the sentence.

(4) Subsection (3) above is subject to (in particular) sections 152 and 153 of the Criminal Justice Act 2003.

Long term detention can be imposed on any offender aged between 10 and 17 inclusive provided the above criteria are satisfied. Essentially this section allows for the imprisonment of those who commit grave offences which would attract lengthy custodial sentences if the offender was an adult. It is noticeable that there is no requirement that an offender under the age of 15 has a persistent pattern of offending, unlike the detention and training order. Case law demonstrates this principle in action such as in one case where two 14-year-old boys who were convicted of robbery had their sentences of 15 months and 30 months’ detention upheld by the Court of Appeal, even though neither had offended before.[11] Similarly there is no statutory requirement that the young person poses a danger to the public, although cases suggest that those who have received long term detention have often engaged in conduct which severely threatens public safety such as causing the death of a young child by dangerous driving (offender aged 14),[12] killing two people by setting fire to a building in which they were sleeping (offender aged 13)[13] and dropping a block of masonry on to a train, severely injuring the driver and making the train run out of control (offender aged 17).[14]

Finally, courts must impose a sentence of detention at Her Majesty’s pleasure for murder committed by an offender who was under 18 at the time of the offence.[15] This is an indeterminate sentence: the offender will serve a tariff period at which point he may, or may not, be granted parole based on whether his risk can be safely managed in the community.

The vocational and educational needs of an offender are irrelevant when determining whether a custodial sentence can be imposed (regardless if that is a detention and training order, long term detention or detention at Her Majesty’s pleasure), despite the welfare of a young person being a paramount concern in youth justice. Determining whether custody can be imposed with regards to the seriousness of the offence though is essential if one wants to guard against disproportionate punishment and ensure that custody is used as a measure of last resort.

3.3 Work as Dignity

Work and dignity are closely linked in various human rights instruments. Although the term 'dignity' of the person was formulated and developed initially by philosophers and political theorists, it made its way into human rights texts.[16] Article 23 of the Universal Declaration of Human Rights provides:

‘1. Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.

3. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.’ [emphasis added]

In relation to protecting the dignity of people in custody, Article 10 of the International Covenant on Civil and Political Rights states:

1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person…

3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status [emphasis added].

Article 6 of the International Covenant on Economic, Social and Cultural Rights states:

1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.

2. The steps to be taken by a State Party to the present Covenant to achieve the full realization of this right shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual [emphasis added].

The key human rights instruments, taken together, set out the positive and negative State obligations in relation to protecting the right of prisoners and young offenders to rehabilitation. A combination of civil and political rights and social, economic and cultural rights provide for the rights of young offenders to receive vocational training in order to assist their rehabilitation process, and ultimately enjoy respect of their dignity, as a result of being valuable members of society.

‘Dignity’ is subject to interpretation, and it is often seen in civil and political rights instruments. But it is unsurprising that it has found its place as a main element of protecting social, economic and cultural rights.[17] Providing both adult and young offenders with the skills to lead a productive life upon release, should be at the centre of the rehabilitation process. While this can be interpreted as providing for education in custody, this can include the provision for vocational training when this is more appropriate or desired. The combination of the International and regional human rights frameworks, together with soft law providing for the protection of the rights of young offenders, has allowed the enforced protection of the right to education and work for young offenders. In addition, the European Court of Human Rights case law is interpreted as an enforced protection of the rights of young offenders, although any mention of children in the European Convention on Human Rights is very limited.

According to Sarkin and Koenig, 'Work provides individuals in a society with an element of human dignity as key contributors to that civilisation, while also providing remuneration, which might allow them to secure an adequate standard of living'.[18] Therefore, acknowledging the human rights implications of addressing work as a human right, would mean that providing the means to pursue the fulfilment of an adequate standard of living and ultimately being a productive member of the society is pivotal.

Evidence suggests that education and training programmes available to prisoners increases their opportunities of entering the job market thereby reducing the rate of reoffending.[19] Unfortunately, according to the latest report of the UK to the Committee on the Rights of the Child, 69% of released young offenders, reoffend within the first 12 months after their release.[20] Enhancing employability and educational attainment as a means of tackling reoffending was central to the planned introduction of ‘Pathfinder Secure College’ in 2017. Regrettably, this proposal was abandoned in 2015 due to alleged financial obstacles amidst great criticism over the potential efficiency of such a prison for young offenders. Some of these criticisms relate to the difficulty for the young prisoners of maintaining local links if they were moved to one “Secure College”, affecting one’s right to private and family life. According to the official response of the Government there is no current plan to revive 'Pathfinder Secure College'.[21] Nevertheless, in the most recent report of the UK to the Committee of the Rights of the Child, the plans for the creation of the Secure College was offered as a promise for addressing the reoffending rates in the youth justice system. In the official response of the Government on the reforms of the Youth Justice system it was highlighted that ‘We must make sure it is a safe and secure environment that can equip young offenders with the skills they need to lead law-abiding lives’, while the same response suggests that two new secure schools will be created and a new apprenticeship scheme will be developed.[22]

Currently, education and training programmes are available to all young offenders in England, while educational and vocational training is compulsory in Northern Ireland.[23] In addition, the White Paper 'Educational Excellence Everywhere' provides that schools will continue to be responsible for providing education and for their results to the children that have been permanently excluded.[24] This is a welcome development that will assist pupils at risk of offending or reoffending to stay engaged with education.[25]

Rule 50 of the European Rules for Juvenile Offenders Subject to Sanctions or measures reads as follows:

Juveniles deprived of their liberty shall be guaranteed a variety of meaningful activities and interventions according to an individual overall plan that aims at progression through less restrictive regimes and preparation for release and reintegration into society. These activities and interventions shall foster their physical and mental health, self-respect and sense of responsibility and develop attitudes and skills that will prevent them from re-offending.

This together with the previous recognition that ‘If education and employment are… not provided, children suffer a social injustice; and some of them will seek rewards in socially undesirable ways’,[26] the matter of reintegration in society through legitimate work becomes a right to dignity. Rehabilitation and dignity are two themes that are closely linked while some countries explicitly provide for the right to rehabilitation, while arguably ‘dignity’ is not embedded in UK law.[27]

Article 40 of the Convention on the Rights of the Child provides that:

1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society.

3. States Parties shall seek to promote the establishment of laws, procedures, authorities and institutions specifically applicable to children alleged as, accused of, or recognized as having infringed the penal law…

4. A variety of dispositions, such as care, guidance and supervision orders; counselling; probation; foster care; education and vocational training programmes and other alternatives to institutional care shall be available to ensure that children are dealt with in a manner appropriate to their well-being and proportionate both to their circumstances and the offence [emphasis added].

Ploch suggests that rehabilitation of young offenders is pivotal in order to ‘reinforce the child’s respect for others and self’.[28] In addition, Article 28 the Convention provides that: “States Parties recognise the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity”. The Beijing Rules are cited in the Convention of the Rights of the Child, making several of its provisions legally binding, and establishing that the protection of the interests of young offenders is a human rights issue.

The European Convention on Human Rights, although it rarely mentions children in its wording, has consistently held in favour of the right of children to education, clarifying the State duties, and has interpreted the right to work as a right relevant to the right to respect family and private life (Article 8) and the right to life (Article 2).

‘[A]s the case law demonstrates, the ECtHR is not only capable of developing new standards of human rights protection from a child’s perspective, it is equally willing to build on those that currently exist, under the CRC and companion instruments.’[29]

Evidently the European Court of Human Rights has gone beyond the Convention on the Rights of the Child in protecting children through the ECHR’s provisions.[30] More specifically, the European Court of Human Rights has provided for the protection of procedural rights in protecting the rights of children. That is the ideal relationship between the two instruments since a combined approach to the protection of the rights of children is the most efficient. Both are legally binding but where one rests on the good will of States to report any issues of implementation, the other allows individual complaints against States.

In relation to the latter, although the United Kingdom is a signatory to the Convention, its provisions have not been implemented into UK law. Nevertheless, the government has released a document on how the UK legislation is being used to protect the rights of children as provided by the Convention on the Rights of the Child.[31] These key Parliamentary Acts make education compulsory and legally provide for the offering of alternative training opportunities to young people when appropriate.[32] Nevertheless, the same laws do not regulate the education provided for detained children. The activities of the involved agencies are regulated by The Apprenticeships, Skills, Children and Learning Act 2009. In particular, the Act provides that education and training provided for young offenders should be equivalent to those provided in schools. It is encouraging that reports by OFSTED (Office for Standards in Education, Children’s Services and Skills) on the current state of education and provision of vocational training in the Youth Secure Estate, do not raise any concern in relation to a potential violation of the right to education by documenting the vocational training options that are available.[33]

3.4 Right to Education

Article 23 of the Universal Declaration of Human Rights 1951 provides that everyone has the right to work, free from discrimination, allowing for ‘an existence worthy of human dignity’. The right is one linked to the right to life and the right to development, while the most convincing link comes from the right to respect.[34] Ploch suggests that the reasons for providing education and training opportunities to people in custody can be attributed to different reasons. One would be that engaging with education while in custody will ultimately benefit society. Another is the 'non-degradation of prisoners': prisoners should leave custody with more skills than when they first entered custody.[35] Article 60(1) of the 1955 United Nations Standard Minimum Rules for the Treatment of Prisoners provides that the difference between life in custody and life outside custody should be minimal.

4. The repeal of the Human Rights Act 1998

The provisions of the European Convention on Human Rights have been implemented through the Human Rights Act 1998 in 2000. Through Protocol 1 Article 2, the European Convention on Human Rights provides that:

No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

The Article entails that the right is both a negative and a positive right. That would mean that the State should refrain from interfering with a child’s right to education, while the State should provide educational ‘possibilities’ when necessary.[36] These positive obligations do not include the creation of ad hoc educational programmes for prisoners.[37]

The United Kingdom signed the European Convention on Human Rights in 1950 and ratified it in 1951 (the first European country to do so) as part of the common drive in Europe for a uniform protection of human rights. The later adoption of the Human Rights Act 1998 signified the implementation of the ECHR provisions into UK law. With this adoption, individuals could pursue the protection of their human rights as provided by the ECHR in UK national courts, while Parliament should ensure that new laws are compatible with the provisions of the ECHR.

The European Convention on Human Rights does not provide for an expressed protection of children’s rights, with two exceptions. In relation to young offenders, Article 5 and 6 offer some protection. But in relation to the offer of work opportunities while in detention as part of enhancing the prospect of having a productive life upon release, the Court has been vocal in establishing that the State does not have a duty to create educational programmes but, when these are available, the State has to ensure access to them. While we do not have an explicit recognition of this for young offenders, the fact is that Article 14 and the right to freedom from discrimination on the grounds of age, would ensure that this is a protected right for young offenders as well.

4.1 The British Bill of Rights and the day after its adoption

‘The Conservatives’ Proposals for Changing Britain’s Human Rights Laws’ released in 2014 highlighted a growing fear that the Strasbourg Court would overrule the decisions of the UK Parliament.[38] The reason for this concern partly derived from the decisions of the Court on prisoners’ rights on issues ranging from prisoners’ voting rights to sentencing. The proposal suggests that the government would undertake the following reforms: The European Court of Human Rights’ decisions would not bind the UK Supreme Court and the European Court of Human Rights would not be able to affect UK law and its role would only be advisory.[39] The Secretary of State said that human rights had become associated with “unmeritorious individuals pursuing through the courts claims that do not command public support or sympathy.”’[40]

The Conservatives expressed the desire that the UK Supreme Court will be independent of the decisions of the Strasbourg Court, and that the precedent set in Strasbourg will not be binding on UK national courts. Nevertheless, a post-repeal of the Human Rights Act 1998 era will not result in individuals not being able to pursue the protection of their human rights before the Strasbourg Court. To this date, the proposed draft Bill of Rights has not been released. The result of the Brexit vote in June 2016, has created an urgency in making decisions over the future of post-Brexit Britain. Therefore, the concern that the human rights of vulnerable groups might be compromised in the process is very much alive. According to Grieve:

‘The most obvious difference would be if Parliament declined to legislate to give effect to a declaration of incompatibility by the Supreme Court on a matter of primary legislation. There would then be no mechanism for the matter to be taken further to get the opinion of an international tribunal whose decision the UK had bound itself by treaty to implement.’[41]

The constitutional consequences of the repeal of the Human Rights Act 1998 have been discussed before; the creation of the new British Bill of Rights will, allegedly, allow the UK not to be bound by European Court of Human rights decisions. One should not forget that the debate over this turbulent relationship included a discussion over prisoners’ rights, most notably with regards to prisoners being refused the right to vote. Nevertheless, the binding character of the decisions and the general willingness of member states to implement them, has ensured a uniformity in the protection of human rights in the area. In addition, the interpretation of the European Court of Human Rights of the Convention provisions has been the primary source of development of human rights in Europe.

In relation to the rights of young offenders, one would think that the Convention on the protection of the rights of the child should be enough. Nevertheless, the combined application of both Conventions has ensured efficiency in protecting the rights of children. Does that mean that removing ourselves from the jurisprudence of the European Court of Human Rights will mean that children's’ rights while in detention would be endangered? The only certain scenario is that, upon repeal of the Human Rights Act 1998, the UK will have to continue to implement the Convention on the protection of the rights of the child, whilst continuing to rely on the Beijing Rules.

5. Inhibitors to Rehabilitation

Regrettably, the need for robust human rights protection for incarcerated children in England and Wales is acute. Any attempt to diminish existing provision is, consequently, of grave concern. The youth custody system faces endemic problems which challenge any meaningful attempts at rehabilitation and raise profound human rights issues. Even the Youth Justice Board, who have responsibility for youth justice, admit fundamental failure:

‘The [Youth Justice Board] itself has acknowledged that the [Youth Secure Estate] is not fit for the purpose of caring for or rehabilitating children and young people. The [Youth Custody Improvement Board] believe this is correct, and is an astonishing analysis by the [Youth Justice Board], given that it has been in operation for over a decade. This inevitably raises a question as to why the [Youth Justice Board] and [the Ministry of Justice] have not been able to intervene in the [Youth Secure Estate] to ensure that it was fit for purpose and keeping children and staff safe.’[42]

Earlier this year, an independent body was charged with inspecting 11 institutions in the Youth Secure Estate.[43] The Youth Justice Board admitted that the secure estate was unable to fulfil even the basic requirement of keeping children and staff safe, let alone provide suitable, effective rehabilitation. The inspectors noted that:

‘Levels of violence have increased year on year and Her Majesty’s Chief Inspector of Prisons, Peter Clarke, in a recent report to the Youth Justice Board (YJB), stated that in his survey of young people in [Young Offending Institutions], 46% had felt unsafe at some point in their time in custody – the highest figure ever recorded. The fact is that the current arrangements and their quality of provision are not anywhere near good enough; without significant change they will not become so.’[44]

Inspections found considerable dissatisfaction from children in custody about the education that they receive:

‘A view consistently expressed by young people was that education was poor, repetitive, below the levels already achieved by a young person and poorly resourced. The majority of classrooms the Board saw contained bolted chairs facing a board at the front, were uninspiring and the available equipment was poor.’[45]

Education was not perceived to be preparing them for employment:

‘Concern was expressed almost universally at the restrictive framework created by the current requirement of providing 30 hours of education per week (or education and intervention in [Secure Training Centres]) and the absence of a clear vocational offer was noted. Some young people were voting with their feet and refusing to attend education because they did not see it as useful or relevant.’[46]

Inspections of individual institutions are helpful as they document the educational and vocational provision on offer. Rainsbrook Secure Training Centre provided good quality teaching and made links to employment skills.[47] Work-related skills were also fostered through such activities as ‘taking a lead role in groups, formulating and presenting a case, or coaching their peers in sports or gym activities’.[48] Occasionally, work experience was offered in the kitchen but the report notes that other work experience opportunities, for example in construction, were lacking.[49] Young people were also not receiving the independent careers advice and guidance to which they were entitled.[50] The inspectors complimented those responsible for resettling young people coming to the end of their sentence:

‘The resettlement team works closely with their education colleagues to identify and plan suitable education, training and employment options that help young people prepare for their return to the community. Mobility is used well in this respect. In the best example, this has included work experience, education interviews and visits to future placements, as well as the completion of community payback and reparation work.’[51]

Work-based provision appears to vary considerably between institutions. In Oakhill Secure Training Centre, a variety of options were provided which were appreciated by the young people:

‘Increased emphasis is being placed upon developing young people’s employability skills and aspirations in areas such as catering, horticulture, hair and beauty and sport. As well as bolstering the range of vocational courses, managers continue to introduce relevant initiatives such as job application and CV writing drop-in sessions, mock interviews conducted by staff from national companies and mobility visits to construction sites. Young people receive these well.’[52]

The inspection reports demonstrate that young people welcome vocationally-focused training that will enhance their employability after serving their sentence. Education that is seen as irrelevant, is not received positively. The inspections do report some excellent practice but it is evident that provision varies between institution and that many young offenders do not receive the type of training that they perceive as beneficial.

6. Conclusion

This reported surge in violence and fear, paradoxically, coincided with a significant fall in the number of children incarcerated. In 2007/2008, there were an average of 3,000 children in secure institutions whereas in 2016/2017 the average number was 850.[53] The Youth Justice Board told inspectors that the needs of those remaining were ‘more challenging and more complex’ and this explained the rise in violence and poor behaviour.[54] Certainly the current profile of children in custody has altered as a result of the fall in overall numbers. First, the offenders tend to be older: 96% are now aged 15 to 17.[55] Secondly, a higher proportion are serving sentences for violent or sexual offences: the proportion in custody for violent offences, robbery and sexual offences increased from 52% in the year ending March 2011 to 68% in the year ending March 2016.[56] An older, more violent population may well be more predisposed to attacking other inmates and staff. A further possible explanation for the rise in violence is that the funding available to the youth secure estate has fallen in line with the reduction in number of children incarcerated.[57] There is far more that could be said about violence and the lack of safety in institutions designed to hold child offenders. Our focus in this article though is on the role work plays in enabling young offenders to lead a law-abiding life once they have completed their sentence and on the human rights obligations that should ensure children are not discriminated against because they are in custody. A system where violence is commonplace is not conducive to providing meaningful educational and vocational training. Although welfare is a stated statutory aim when courts deal with young people,[58] this aim is undermined if young people are sent to institutions which cannot provide suitable surroundings for rehabilitation.

Human rights instruments support the facilitation of the rehabilitation process for all people in custody including young offenders. This is based on the premise that no one should leave custody in a more disadvantaged position than when they entered. This is obviously linked to providing education and training opportunities, but evidence of this surge of violence suggests that other human rights are also affected, that need to be addressed in order to ensure the smooth (re)integration into society.

[1] See Department of Education, The United Nations Convention on the Rights of the Child: How legislation underpins implementation in England, March 2010

[2] ibid

[3] A. Travis, UK would have to declare state of emergency to change human rights laws, The Guardian, 7 June 2017 https://www.theguardian.com/uk-news/2017/jun/07/uk-would-have-to-declare-state-of-emergency-to-change-human-rights-laws

[4] The purposes of sentencing adult offenders are different and more factors are seen as relevant. The Criminal Justice Act 2003, s.142(1) states that: ‘Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing – (a) the punishment of offenders, (b) the reduction of crime (including its reduction by deterrence), (c) the reform and rehabilitation of offenders, (d) the protection of the public, and (e) the making of reparation by offenders to persons affected by their offences.’

[5] Criminal Justice Act 2003, s.142A.

[6] P. Raynor, “Community Penalties, Probation, and Offender Management”, in M. Maguire, R. Morgan and R. Reiner (eds.), The Oxford Handbook of Criminology, Oxford, OUP, 2012, pp. 928-954; A. Worrall and R. Canton, “Community Sentences and Offender Management for Adults” in C. Hale, K. Hayward, A. Wahidin and E. Wincup (eds.), Criminology, Oxford, OUP, 2013, pp.493-512.

[7] Children and Young Persons Act 1933, s.44(1).

[8] Youth Justice Board (2010) The Youth Rehabilitation Order and other Youth Justice Provisions of the Criminal Justice and Immigration Act 2008 – Practice guidance for youth offending teams London: Youth Justice Board p.21.

[9] There are a variety of ways in which a custodial sentence can be imposed on an adult offender, but the most common test is found in the Criminal Justice Act 2003, s.152(2): ‘The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence.’

[10] There are also a variety of ways in which a custodial sentence can be imposed on an offender aged 18 to 20 inclusive, but the most common test is found in the Powers of Criminal Courts (Sentencing) Act, s.96(1): ‘Subject to sections 90, 93 and 94 above, where – (a) a person aged at least 18 but under 21 is convicted of an offence which is punishable with imprisonment in the case of a person aged 21 or over, and (b) the court is of the opinion that either or both of paragraphs (a) and (b) of section 79(2) above apply or the case falls within section 79(3), the sentence that the court is to pass is a sentence of detention in a young offender institution.’

[11] S J-R and DG [2001] 1 Cr.App.R.(S.) 377.

[12] Z [2008] 2 Cr.App.R.(S.) 623.

[13] SP [2010] 1 Cr.App.R.(S.) 186.

[14] Ratcliffe [2008] 2 Cr.App.R.(S.) 441.

[15] Powers of Criminal Courts (Sentencing) Act 2000, s.90.

[16] See C. McGrudden, “Human Dignity and Judicial Interpretation of Human Rights”, EJIL, 19, 2008, p 655

[17]J. Sarkin and M. Koenig, “Developing the Right to Work: Intersecting and Dialoguing Human Rights and Economic Policy”, Human Rights Quarterly, 33, 2011, p 1

[18] ibid 3

[19] A. Ploch, “Why dignity matters: Dignity and the Right (or not) to Rehabilitation from International and National Perspectives”, NYUJ Int’l L. & Pol., 44, 2011, 892

[20] Ministry of Justice, Youth Justice Statistics 2015/16, England and Wales, 2017, 13

[21] Glen Parva Young Offender Institution: Written question - HL2696, Answered by Lord Keen of Elie, 9 November 2016

[22] Written statement Ministry of Justice, Made by Lord Keen of Elie, The Lords Spokesperson, Ministry of Justice,12 December 2016

[23] Fifth periodic reports of States parties due in 2014, United Kingdom, Committee on the Rights of the Child, 6 March 2015, CRC/C/GBR/5 paras 263-4

[24] Department of Education, Education Excellence Everywhere, March 2016, 70

[25] C. Taylor, Review of the Youth Justice System in England and Wales, Ministry of Justice, December 2016, para 33

[26] Working paper prepared by the Secretariat on “Juvenile Justice: Before and After the Onset of Delinquency”, Sixth United Nations Congress, A/CONF.87/5.

[27] Ploch n 19, 891

[28] ibid

[29] U Kilkelly, Protecting children’s rights under the ECHR: the role of positive obligations, Protecting children’s rights under the ECHR, N. Ir. Legal Q., 61, 2010, p 261

[30] Ibid p 255

[31] Department of Education n 1, 114

[32] Education and Skills Act 2008, s. 28.

[33] Houses of Parliament: Parliamentary Office of Science & Technology, Education in Youth Custody, PostNote, Number 524, Mary 2016

[34] T. De George, The right to Work: Law and Ideology, Val. U. L. Rev., 19, 2011, p 18

[35] Ploch n 19, 898

[36] Partly Dissenting Opinion of Judge Pinto de Albuquerque, Tarantino and Others v Italy App nos 25852/09, 29284/09 and 64090/09 (ECHR, 2 April 2013)

[37] Epistatu v Romania App no 29343/10 (ECHR, 24 September 2013) para 62

[38] Conservatives, Protecting Human Rights in the UK 3

[39] Ibid p 5

[40] Inquiry on The Potential Impact on EU Law of Repealing Human Rights Act, Evidence Session no. 8 http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/eu-justice-subcommittee/potential-impact-of-repealing-the-human-rights-act-on-eu-law/oral/28347.html

[41] D. Grieve QC MP, “Can a Bill of Rights do better than the Human Rights Act?”, Public Law, 2, 2016, p 4

[42] Findings of the Youth Custody Improvement Board (2017) para 5

[43] They inspected Ashfield, Cookham Wood, Feltham, Hindley, Parc, Warren Hill, Werrington and Wetherby Youth Offending Institutions and Medway, Oakhill and Rainsbrook Secure Training Centres. They did not inspect any Secure Children’s Homes which typically house the youngest offenders and female young offenders.

[44] Findings of the Youth Custody Improvement Board (2017) para 3

[45] Findings of the Youth Custody Improvement Board (2017) para 32

[46] Findings of the Youth Custody Improvement Board (2017) para 33

[47] OFSTED (2016) Inspections of Secure Training Centres: Rainsbrook London: OFSTED para 59

[48] OFSTED (2016) Inspections of Secure Training Centres: Rainsbrook London: OFSTED para 52

[49] OFSTED (2016) Inspections of Secure Training Centres: Rainsbrook London: OFSTED para 60

[50] OFSTED (2016) Inspections of Secure Training Centres: Rainsbrook London: OFSTED para 63

[51] OFSTED (2016) Inspections of Secure Training Centres: Rainsbrook London: OFSTED para 78

[52] OFSTED (2016) Inspections of Secure Training Centres: Oakhill London: OFSTED para 56

[53] Findings of the Youth Custody Improvement Board (2017) para 21

[54] Findings of the Youth Custody Improvement Board (2017) para 21

[55] Findings of the Youth Custody Improvement Board (2017) para 3

[56] Findings of the Youth Custody Improvement Board (2017) para 3

[57] Findings of the Youth Custody Improvement Board (2017) para 12

[58] Children and Young Persons Act 1933, s.44(1)