Report
Criminal Justice (Young Offenders) (Jersey) Law 201-
Introduction
- Locking up children, young persons and young adults should always be a last resort. However, it is inevitable that some children, young persons and young adults will need to be deprived of their liberty and their wellbeing is of primary importance.
- The terms ‘child’, ‘young person’ and ‘young adult’ are all defined in the interpretation Article of the draft Law. A ‘child’ is a person who has reached the age of 10, but has not yet reached the age of 15. No reference is made throughout this Law to any child under the age of 10 because 10 is the age of criminal responsibility in Jersey, see Article 2 of the draft Law. A ‘young person’ is a person who has reached the age of 15 but has not reached the age of 18; and a ‘young adult’ is a person who has reached the age of 18 but is under 21.
- The current management of children, young persons and young adults in custody can be improved upon and the Children’s Policy Group (CPG), comprising the Ministers for Home Affairs, Education Sport and Culture and Health and Social Services; together with the chief officers from those departments and the Chief Probation Officer; and the chair of the Jersey Safeguarding Board, have considered how best to achieve this. In so doing, they took into account the Criminal Justice (Young Offenders) (Jersey) Law 1994, the Children (Jersey) Law 2002 and the Prison (Jersey) Law 1957.
- Consideration was given as to whether or not the Criminal Justice (Young Offenders) (Jersey) Law 1994 (‘the 1994 Law’) should be extensively amended. However, on reflection it was decided that it would be preferable to replace the 1994 Law with the draft Criminal Justice (Young Offenders) (Jersey) Law 201- (‘the draft Law’).
- Many of the provisions that were contained in the 1994 Law remain in the draft Law. The main differences from the 1994 Law are in respect of Part 3 of the draft Law, which deals with Remand and Part 4 of the draft Law which deals with the Young Person’s Placement Panel.
- Key stakeholders have been consulted in the preparation of the draft Law. The policy principles were given early approval by the Children’s Policy Group and consultation has taken place with the Full Court, the Magistrate, the Health and Social Services Department, the Education, Sport and Culture Department and the Probation and After-Care Service. Employee representatives have been advised and comments from the Education and Home Affairs Scrutiny Panel taken into account.
Background
- There are currently two establishments in the Island that have the legal authority, subject to their particular age, to detain children, young persons and young adults in custody: Greenfields and La Moye Prison.
- Greenfields is a secure, 8-bed unit that comes under the responsibility of the Minister for Health and Social Services. At the present time, there are two referral routes into Greenfields - a child or young person can be remanded to there by a criminal court if they are of compulsory school age.
- Alternatively, a child or young person may be placed in Greenfields under a Secure Accommodation Order under the Children (Jersey) Law 2002 if it is felt necessary to prevent them from injuring themselves or others; or if they have a history of absconding and, if they abscond, are likely to suffer significant harm. A Secure Accommodation Order is a civil order made by the Royal Court following an application by the Minister for Health and Social Services.
- The definition of compulsory school age is not straightforward and is defined in Article 2 of the Education (Jersey) Law 1999 as:
(1) For the purposes of this Law, a child is of compulsory school age throughout the period beginning on the first day of the school term in which the child’s fifth birthday falls and ending on 30th June in the school year in which the child attains the age of 16 years, and the terms “below compulsory school age”, “upper limit of compulsory school age” and “over compulsory school age” shall be construed accordingly.
(2) For the purposes of this Article, the following periods in any school year are school terms –
(a) the period beginning on 1st September and ending on 31st December;
(b) the period beginning on 1st January and ending on 30th April; and
(c) the period beginning on 1st May and ending on 31st August.
- The Jersey Prison Service, which is the responsibility of the Minister for Home Affairs, is able to accommodate remanded offenders who are over the age of compulsory schooling and sentenced young offenders from the age of 15. There is a Young Offender Institution at La Moye which is populated by male young people and young adults aged between 15 and 20.
- There is no Young Offender Institution for female young people and young adults and they have always been integrated into the adult female population. The practice of detaining female young people together with the adult female prison population was recently challenged in the Royal Court in Jersey and subsequently before the European Court of Human Rights (“ECtHR”) in Strasbourg. The ECtHR challenge was defeated on a technical point and without a decision being made by the ECtHR on the merits of the challenge. Another challenge may be made in the future if this practice continues.
New Provisions in the draft Law
- Currently, the location for a child, young person or young adult in custody is automatically determined legislatively i.e. by virtue of their age or whether they are on remand or convicted, and there is no flexibility. A child (i.e. under 15) would not be sent to La Moye and a young adult (i.e. over 18) would not be sent to Greenfields. The location to which a young person (i.e. between 15 and 17) is sent depends on whether they are compulsory school age, as defined above.
- Under the proposed changes introduced by the draft Law, it is intended that the most suitable location for a young person should be determined by the Young Person’s Placement Panel (‘the Panel’) established under Part 4 of the Law. Article 22 gives the States the power to make Regulations concerning the Panel, ie: the appointment of members, the holding of meetings, rights of appeal against its decisions, its constitution, etc. It is anticipated that the Panel would be likely to comprise senior managers from relevant States departments and that there would be an independent chairperson from a child care background.
- In accordance with Article 7 and Article 16 of the draft Law, Greenfields would be able to take children and young persons, both male and female, up to and including the age of 17; and the Young Offenders Institution would be able to take male young persons up to and including the age of 17 and male young adults aged 18 – 20. The criminal courts, when remanding or sentencing a young person, would simply remand them or sentence them to a period of youth detention without stipulating the location, subject to the system outlined below. Under Article 18(a), the Panel would make the decision as to whether they should go to Greenfields or La Moye. It is not intended that the courts should need to be involved in where a young person is ultimately located.
- The functions of the Placement Panel are set out in Article 18 and include determining the appropriate place of custody for young persons remanded or sentenced to a period of youth detention. Under Article 19 the Panel should exercise its functions having decided what is in the best interests of the young person, and indeed of any other young person detained in the same place. Article 19(a)-(g) details what they shall have regard to in making those decisions. For example, taking into account all the factors in Article 19, the Panel could place a vulnerable 17 year old young person, who has been convicted, in Greenfields; or, alternatively, place a disruptive or violent male child or young person of school age into the Young Offender Institution at La Moye. This flexibility does not currently exist, but would help to ensure that the needs of the young person were best met by placing them in the most suitable location for them.
- In terms of where young persons would be placed, it is envisaged that the system would function on the basis that young persons ‘of school age’ would ordinarily be accommodated at Greenfields (although male young persons may also be sent to the Young Offenders Institution), whilst those young persons over the age of school age would ordinarily be sent to La Moye. The male young persons over school age would be sent to the Young Offenders Institution, whilst female young persons would be accommodated, as currently, with the adult females. This would be the default position and would relate to both those on remand and those sentenced.
- Notwithstanding the default position, there will be some limited flexibility to deviate from the default position to respond to various circumstances. Under Article 10, the Prison Governor will have the power to move a male young adult or female young person to the Prison. In relation to female young persons, Article 10(3) sets out the circumstances in which a female young person can be moved to the Prison and requires that the Panel agree to any such move. Under Article 18, any move of a female young person to the Prison would need to be kept under regular review by the Panel, which could require the young person to be moved to an appropriate place of custody where that is appropriate.
- The Law Officers’ Department has taken early advice from the Ministry of Justice (MoJ) Legal Advisers as to whether they consider that the proposals to detain accused and convicted children together in Greenfields as an impediment to the draft Young Offenders Law being granted Royal Assent. MoJ would take the view that accommodating accused and convicted children together falls within the qualification on the obligation in Article 10(2)(a) of the International Covenant on Civil and Political Rights, which permits accused and convicted persons to be detained together in “exceptional circumstances”. They appear to view the combination of the placement decision being made by the Panel and the population and resources of Jersey as amounting to such exceptional circumstances. MoJ recognise that when dealing with children there may be no other pragmatic and practical solution than to accommodate children detained for welfare reasons, on remand or following conviction together (as is the case in England and Wales as well as the Isle of Man).
- In making the decision, the Panel would also have to have regard to the ‘mix’ of children and young persons in any location (Article 19(b)). Therefore, if there were a 12 year old child in Greenfields it may not be appropriate for a 17 year old young person, even if they are vulnerable, to be in Greenfields at the same time. The Panel can also move a young person from Greenfields to La Moye, and vice-versa, if it was felt that this was the most suitable course of action, without having to refer the decision to the courts (Article 18(b)).
- There will also be occasions when it is not possible for the Panel to convene in time to consider a placement, eg: at the weekend or outside normal working hours. Article 16(3) provides for this eventuality; it is envisaged that “the person who orders the person to be remanded in custody” would be the duty Jurat. However, it is intended that the duty Jurat would have to consult with designated officers from the Children’s Service and the Prison to be able to place in either establishment given the presenting assessments for the young person and which took into account the needs of the other residents in each establishment. This would require the Panel to establish an 'out of hours' protocol under its terms of reference to allow this to happen.
- There would be parity between Greenfields and La Moye in relation to length of sentence. That is to say, in terms of length of sentence actually served, there will be no benefit or detriment for a young person to serve their sentence in one facility rather than the other.
- As detailed in the `background’, children and young persons of school age, who are on remand in respect of a criminal offence, can currently be housed in Greenfields. Under the new system, Greenfields would also hold children and young persons who have been convicted of an offence. Greenfields is staffed by Health and Social Services staff, who need to have the vires to detain these convicted children and young persons as only prison officers currently have that power. This is catered for in Schedule 2 of the draft Law which introduces a new Article 22A to the Children (Jersey) Law 2002 as follows:
“22A Use of secure accommodation for orders under the Criminal Justice (Young Offenders) (Jersey) Law 201-
(1) A young person who has been sentenced to youth detention or who is remanded in custody under the Criminal Justice (Young Offenders) (Jersey) Law 201- and in respect of whom the Young Person’s Placement Panel has determined that the young person shall be detained in secure accommodation, shall be treated for the purposes of this Law as a child who is being looked after by the Minister and shall be kept in accommodation provided for the purposes of restricting liberty.
(2) The accommodation provided under paragraph (1) may be the same accommodation as that provided under Article 22.”.
- It is important to note that any child or young person subject to a Secure Accommodation Order would only ever be accommodated in Greenfields.
Financial and Manpower Implications
- Given the present low level of youth offending, and the small number of young offenders requiring either a custodial remand or sentence, together with present staffing levels in care homes, the Health and Social Services Department will manage its resources so as to ensure that Greenfields is staffed according to the numbers and make-up of the resident population. This is not the case for the Education, Sport and Culture Department (ESC). Their requirement is to provide an educational provision for any pupil of statutory school age within Greenfields and they staff the Alternative Curriculum to provide for this occasional demand. Any post-statutory educational need would require ESC to provide additional resources with a different knowledge and skill set. Assuming that the number of juveniles, above school leaving age, placed in Greenfields by the Panel is very few, ESC will aim to absorb any additional demand within the facilities provided for those children under school leaving age. However, should there be a prolonged increase in occupancy rates such that undue pressure was placed on the care and education system as a whole, then those Departments would need to consider a request for additional staff resources through the Medium Term Financial Plan process.
Human Rights
- The notes on the human rights aspects of the draft Law in the Appendix have been prepared by the Law Officers’ Department and are included for the information of States Members. They are not, and should not be taken as, legal advice.
APPENDIX TO REPORT
Human Rights Notes on the draft Criminal Justice (Young Offenders) (Jersey) Law 201-
These Notes have been prepared in respect of the draft Criminal Justice (Young Offenders)(Jersey)Law 201- (the “draft Law”) by the Law Officers’ Department. They summarise the principal human rights issues arising from the contents of the draft Law and explain why, in the Law Officers’ opinion, the draft Law is compatible with the European Convention on Human Rights (“ECHR”).
These notes are included for the information of States Members. They are not, and should not be taken as, legal advice.
The draft Law raises human rights issues in so far as it permits:
a) remanded and convicted young persons to be detained together; and
b) in very limited circumstances, the detention of female young persons in the adult prison.
The human rights issues raised by these provisions and the reasons why the draft Law is compatible with relevant international human rights obligations are set out below.
Detention of remanded and convicted persons together
The draft Law includes, inter alia, provision that will enable young persons (i.e. those aged 15 or over, but under 18) who have been convicted and sentenced to a period of youth detention to be accommodated in the same secure accommodation as children (i.e. persons under 18) who are lawfully remanded or detained in secure accommodation for welfare reasons pursuant to the Children (Jersey) Law 2002. The secure accommodation unit that these children and young people may be detained in is known as Greenfields and is a secure eight bed-unit that comes under the responsibility of the Minister for Health and Social Services. At present Greenfields is only used to accommodate children for welfare reasons or those on remand who are under school leaving age. Residents normally associate with one another regardless of their reasons for being there and it would not be feasible to segregate convicted and unconvicted children for a number of practical reasons.
These arrangements raise an issue with regard to compliance with the obligation in Article 10(2)(a) of the International Covenant on Civil and Political Rights (“ICCPR”), which provides that:
“2.(a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons;”
No reservation has been entered in respect of this obligation in the ICCPR either in respect of the UK or in respect of the Crown Dependencies. However, the accommodation of accused and convicted children together, in the circumstances permitted by the draft Law, may properly be viewed as falling within the qualification on this obligation that permits accused and convicted persons to be detained together in “exceptional circumstances”. In this regard it is relevant that Jersey’s population and resources mean there may be no other practical solution to the accommodation needs of these young persons. Also that the placement decision in each case will be made by the Young Persons Placement Panel (“the Panel”), which will provide some assurance as to the propriety of the placement decision from a welfare perspective.
It is perhaps relevant to note that in both the United Kingdom and the Isle of Man, secure accommodation is used for the detention of young persons who have been convicted of offences and young persons who are detained on remand or for their welfare.
Place of detention for female young persons
At present, female children over school leaving age who are remanded or sentenced to a period of youth detention are detained in the adult prison. This is because the number detained is insufficient to make the establishment of a female young offender institution viable and it is not lawful at present to detain them in secure accommodation. The detention of female children together with adults in the prison raises issues with regard to compliance with a number of international obligations, including those found in the UN Convention on the Rights of the Child (“UNCRC”) (which is soon to be extended to Jersey), the ICCPR, and Articles 3 (inhumane and degrading treatment) and 5 (right to liberty) of the ECHR. The relevant provisions and their limitations are briefly set out below, followed by an explanation as to why the provisions of the draft Law are compatible with them.
With regard to the UNCRC, Article 37(c) provides that:
“(c) …every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances."
However, the UK has entered a reservation in respect of the application of Article 37(c) UNCRC to the UK’s dependent territories. That reservation provides that:
“Where at any time there is a lack of suitable detention facilities or where the mixing of adults and children is deemed to be mutually beneficial, the United Kingdom, in respect of each of its dependent territories, reserves the right not to apply article 37 (c) in so far as those provisions require children who are detained to be accommodated separately from adults.”
Similarly, Article 10(2)(b) and (3) of the ICCPR provide, so far as is relevant, that:
“(b) Accused juvenile persons shall be separated from adults…”
(3) …Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.”
However, again there is a reservation in respect of this obligation which states that:
“Where at any time there is a lack of suitable prison facilities or where the mixing of adults and juveniles is deemed to be mutually beneficial, the Government of the United Kingdom reserve the right not to apply article 10(2)(b) and 10(3), so far as those provisions require juveniles who are detained to be accommodated separately from adults”.
Article 3 of the ECHR provides that:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The pre and post-trial detention of a young person in an adult prison, may, together with other negative factors, potentially give rise to a violation of Article 3 of the ECHR. However, that would only be the case if the treatment of the young person taken as a whole amounts to inhumane and degrading treatment of sufficient severity.
Article 5(1) of the ECHR provides, so far as it is relevant that:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
...
(d) the detention of a minor by lawful order for the purpose of educational supervision ...”
To be compatible with Article 5(1) of the ECHR, a deprivation of liberty must, in addition to falling within one of the exceptions set out in sub-paragraphs (a) to (f), be “lawful” by reference to national law. Any deprivation of liberty should also be in keeping with the purpose of protecting the individual from arbitrariness. This later requirement means that there should be some relationship between the exception relied on and the place and conditions of detention.
The draft Law addresses the risk of breaching these international obligations by ensuring that the appropriate place of custody for a female young person remanded or sentenced to youth detention will be secure accommodation rather than the prison. Under the draft Law, the detention of a female young person in the prison will only occur exceptionally. Under Articles 10(3) (temporary transfer to prison) and 16(3)(b) (remand pending a decision of the Panel) a female young person will only be detained in the adult prison where that is in the best interests of the young person or another person with whom they may be accommodated, or where a place in secure accommodation is not available.
Further, there are important safeguards in place before a female young person could be accommodated in prison. A transfer to the prison will only take place with the agreement of the Panel and the Panel must conduct regular reviews under Article 18(c) of the draft Law following any such transfer. Those reviews will be conducted with a view to transferring the female young person to secure accommodation as soon as that becomes appropriate. The temporary remand of a female young person in the prison will only occur where the court, or any person who orders that the person be remanded, having regard to all the circumstances relevant at the time, considers that the prison is more suitable for meeting her particular needs or that there is no suitable secure accommodation available.
By limiting the powers to detain female young persons in the prison, as the draft Law does, the risk of any circumstances arising where an individual is detained in breach of the applicable international obligations and the reservations applying to them is minimised and managed so far as is practicable in Jersey. The draft Law should then be viewed as compatible with the ECHR and the other relevant international obligations referred to above.
In addition to the above, it is perhaps relevant to note that Article 14 of the ECHR provides that:
“The enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The difference in treatment between female and male young persons provided for in the draft Law may engage Article 14 of the ECHR, since it may amount to a difference in treatment based on sex falling within the ambit of, inter alia, Article 5 of the ECHR. However, the differences in the treatment of male and female young persons under the draft Law have an objective and reasonable justification. They pursue the legitimate aim of ensuring that appropriate, high quality accommodation is provided to both sexes from limited funds and in view of the small number of juvenile females requiring such accommodation. Consequently they do not amount to unlawful discrimination for the purposes of Article 14 of the ECHR.”
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