Criminal Justice (Young Offenders) (Jersey) Law 2014: Amendment: Law drafting instructions

Information about the publication of Ministerial Decisions

A formal published “Ministerial Decision” is required as a record of the decision of a Minister (or an Assistant Minister where they have delegated authority) as they exercise their responsibilities and powers.

Ministers are elected by the States Assembly and have legal responsibilities and powers as “corporation sole” under the States of Jersey Law 2005 by virtue of their office and in their areas of responsibility, including entering into agreements, and under any legislation conferring on them powers.

An accurate record of “Ministerial Decisions” is vital to effective governance, including:

demonstrating that good governance, and clear lines of accountability and authority, are in place around decisions-making – including the reasons and basis on which a decision is made, and the action required to implement a decision
providing a record of decisions and actions that will be available for examination by States Members, and Panels and Committees of the States Assembly; the public, organisations, and the media; and as a historical record and point of reference for the conduct of public affairs

Ministers are individually accountable to the States Assembly, including for the actions of the departments and agencies which discharge their responsibilities.

The Freedom of Information Law (Jersey) Law 2011 is used as a guide when determining what information is be published. While there is a presumption toward publication to support of transparency and accountability, detailed information may not be published if, for example, it would constitute a breach of data protection, or disclosure would prejudice commercial interest.

A decision made 14 January 2016:

Decision Reference: MD- HA-2016-0006
Decision Summary Title :	Law drafting instructions – Amendments to Criminal Justice (Young Offenders) (Jersey) Law 2014		Date of Decision Summary:	14 January 2016
Decision Summary Author:	Director, Social Policy		Decision Summary: Public or Exempt? (State clauses from Code of Practice booklet)	Public
Type of Report: Oral or Written?	Written		Person Giving Oral Report:	n/a
Written Report Title :	Law drafting instructions – Amendments to Criminal Justice (Young Offenders) (Jersey) Law 2014		Date of Written Report:	06 January 2016
Written Report Author:	Director, Social Policy		Written Report : Public or Exempt? (State clauses from Code of Practice booklet)	Public
Subject: Law drafting instructions – Amendments to Criminal Justice (Young Offenders) (Jersey) Law 2014
Decision(s): The Minister for Home Affairs has determined that the Criminal Justice (Young Offenders) (Jersey) Law 2014 should be amended and has approved the relevant law drafting instructions.
Reason(s) for Decision: In July 2014, the States Assembly adopted the Criminal Justice (Young Offenders) (Jersey) Law 2014 - P.93/2014 (the “2014 Law”), which has yet to be brought into force. In reviewing the 2014 Law however, a number of issues have arisen which require it being amended prior to bringing it into force. These include in relation to: the treatment of 17 year olds under the law; the detention of children who have committed a serious crime; the status of children and young people who are detained or on remand.
Resource Implications: None
Action required: To request the Law Draftsman to prepare the amended Law for the States to debate.
Signature:		Position: Minister for Home Affairs
Date Signed:		Date of Decision (If different from Date Signed):

Criminal Justice (Young Offenders) (Jersey) Law 2014: Amendment: Law drafting instructions

Law drafting instructions

Criminal Justice (Young Offenders) (Jersey) Law 2014

Introduction

In July 2014, the States Assembly adopted the Criminal Justice (Young Offenders) (Jersey) Law 2014 - P.93/2014 (the “2014 Law”), which has yet to be brought into force, is intended to:

a) make provision for a Placement Panel whose function is to determine and review the place of custody for young offenders.

b) replace the existing Criminal Justice (Young Offenders) (Jersey) Law 1994.

In reviewing the 2014 Law however, a number of issues have arisen which require it being amended prior to bringing it into force. These issues, which are detailed below, were considered and agreed by Home Affairs Minister, in consultation with the Children and Vulnerable Adults Policy Group (CAVA)[1] on 13 November 2015.

Please note, this paper only deals with aspects of the 2014 Law that Ministers consider need to be amended.

Below references to a “lesser offence” are to an offence for which the maximum custodial sentence is less than 14 years imprisonment and references to a “serious offence” are to an offence for which the maximum custodial penalty is 14 years imprisonment or more.

Amendments to 2014 Law

There are four key issues arising in relation to required amendments to the 2014 law. These include:

1) treatment of 17 years olds in the 2014 Law

2) detention of children who commit a serious offence

3) role of the Placement Panel with regard to children and young people

4) status of children and young people who are detained or on remand.

Matters relating to policy considerations and the required amendments for each of these issues is set out below.

1) Treatment of 17 years olds in the 2014 Law

Background

There are differences between the 1994 Law and the 2014 Law with regard to the treatment of 17 year olds. In summary:

a) under the 2014 Law a 17 year old can only receive a maximum 12 month sentence for a lesser offence (although they can receive longer for serious offences or for murder)

b) under the 1994 Law a 17 year old can receive a same as the maximum sentence which is applicable to a 21 year old for a lesser offence

Or, to put in another way: the 2014 Law treats 17 year olds the same way as 15 and 16 year olds, whereas the 1994 Law treats 17 year olds the same way as 18, 19 and 20 year olds.

The effect of this change is that, at the point at which the 2014 Law is enacted, a 17 year who commits a lesser offence would receive a sentence which is potentially significantly shorter than that which they currently may receive.

Ministers [2] have determined that this is in accordance with their policy objectives except in relation to offences committed whilst driving or in control of a vehicle.. Ministers are of the view that, a 17 year who is allowed to drive, should have the same responsibilities as all other persons who are allowed to drive. For this reason, the law should treat 17 year olds the same as 18 year olds for the purpose of certain road traffic offences (see paragraph 16 below).

Creating an exception of this nature is, in the Law Officers’ Department’s view, compatible with Jersey’s commitments under the UNCRC because a 17 year old charged with a driving offence would still be subject to the juvenile justice system. This means that their case would dealt with by the Youth Court and that prior to imposing a custodial sentence, the Court must find that the young person:

a) has a history of failing to respond to custodial penalties or is unable or unwilling to respond to them

b) or that only a custodial sentence would be adequate to protect the public from serious harm from the person or

c) that the totality of the offending is so serious that a non-custodial sentence cannot be justified.

In summary then, the policy objective is that the Law should therefore provide for the following:

	Age	Sentence for murder	Maximum period of detention for serious offence	Maximum sentence for lesser offences (Youth Detention)
	0-9	Nothing: as below the age of criminal responsibility
Child:	10	Detention during HM pleasure	Same as the maximum sentence applicable to a 21 year old for the same offence	Cannot be sentenced to youth detention
	11	Detention during HM pleasure	Same as the maximum sentence applicable to a 21 year old for the same offence	Cannot be sentenced to youth detention
	12	Detention during HM pleasure	Same as the maximum sentence applicable to a 21 year old for the same offence	Cannot be sentenced to youth detention
	13	Detention during HM pleasure	Same as the maximum sentence applicable to a 21 year old for the same offence	Cannot be sentenced to youth detention
	14	Detention during HM pleasure	Same as the maximum sentence applicable to a 21 year old for the same offence	Cannot be sentenced to youth detention
Young Person:	15	Detention during HM pleasure	Same as the maximum sentence applicable to a 21 year old for the same offence	Sentence cannot exceed more than 12 months
	16	Detention during HM pleasure	Same as the maximum sentence applicable to a 21 year old for the same offence	Sentence cannot exceed more than 12 months
	17	Detention during HM pleasure	Same as the maximum sentence applicable to a 21 year old for the same offence	Sentence cannot exceed more than 12 months Exception for offences committed by drivers when treated the same as an 18 year old.
Young Adult	18	Custody for life	Same maximum sentence that a 21 year old could face for the same offence	Same as the maximum sentence applicable to a 21 year old for the same offence.
	19	Custody for life	Same maximum sentence that a 21 year old could face for the same offence.	Same as the maximum sentence applicable to a 21 year old for the same offence.
	20	Custody for life	Same maximum sentence that a 21 year old could face for the same offence.	Same as the maximum sentence applicable to a 21 year old for the same offence.

Instructions

In view of the above the Law Draftsman is asked to prepare an amendment to the 2014 Law to provide an exception to the general rule in Article 4(6) that the maximum sentence of youth detention that a young person can receive for a lesser offence is 12 months.

The exception should provide that where a young person who is 17 years of age commits an offence as a driver and as prescribed in the Road Traffic (Jersey) Law 1956 (the “1956 Law”), then they should be liable to the same maximum custodial sentence as someone who is 21 years old who commits the same offence.

Whilst we recognise that young persons under the age of 17 could also commit offences under the 1956 Law, the policy intention is simply that we continue the pre-2014 Law position in respect of offences committed as a driver (i.e. 17 year olds but not 15 and 16 year olds can receive sentences of over 12 months following conviction for those offences).

The 1956 Law is comprehensive of the serious statutory driving offences in Jersey. However, this exception should not apply to all offences arising in the 1956 Law. It should only apply to those offences which arise from the actions of the 17 year old as the driver of a vehicle. As a result it is proposed that this exception should not apply to the offences of forgery of a licence (in Article 18 of the 1956 Law) and forgery and false statement in relation to vehicle certificates (in Article 79 of the 1956 Law), both of which carry maximum custodial penalties in excess of 12 months imprisonment. The exception can apply in respect of the remaining offences in the 1956 Law, notwithstanding that many of these do not currently give rise to a maximum penalty in excess of 12 months (so that in practice the application of the exemption will currently be of no practical effect). This will perhaps avoid the need to amend the 2014 Law whenever amendments are made to the 1956 Law, though it will be important to keep the application of this exemption under review if and when changes are made to the 1956 Law.

For completeness, LOD notes that by an Order in Council of the 26th December 1851(“the 1851 Order”)[3] the States also have the power to make regulations relating to the police of the public roads. By virtue of Article 92 of the 1956 Law, that power may be exercised in relation to “any park or other public place or any sea beach”. In this context, “police” is taken to have a wide meaning, being to regulate. The 1851 Order and the 1956 Law have previously been used to make regulations amending the provisions of the 1956 Law, including inserting provision enabling the Minister to make provision by order with respect to the compulsory wearing of crash helmets on motor cycles [4]. Provision has also been made in regulations for relatively minor offences in respect of the use of roads, parks and beaches [5], including in relation to the use of bicycles [6]. The offences created in exercise of the powers in the 1851 Order all appear to be of a relatively minor nature and so it is not considered necessary to apply the exception to offences created in regulations made under the 1851 Order. However, we recognise that as and when amendments are made to the 1956 Law either in exercise of the power in the 1851 Order or by new primary legislation it will be important to keep the propriety of the content of the exception added to the 2014 Law under review.

The only customary offence that a driver might be charged with is manslaughter. However, as the maximum sentence for manslaughter is in excess of 14 years imprisonment, it does not appear to be necessary to apply the exception in respect of the sentence for any customary offence.

2) Detention of children who commit a serious offence

Article 4(3) of the 2014 Law provides that, subject to Article 4(6), the maximum sentence of youth detention that can be imposed on young person or young adult is the same as the maximum period of imprisonment that an adult might receive. Article 4(6) of the 2014 Law then limits the maximum period of youth detention that may be imposed on a young person to 12 months imprisonment, subject to the exceptions in Article 5 for murder and serious crimes. Article 5(1) of the 2014 Law provides that a child, young person, or young adult can be detained for life for murder. However, Article 5(3) provides that a young person, but not a child, can be detained for committing a serious offence.

This is;

1) a change in position from the 1994 Law, Article 5(4) of which allowed for children to be detained for committing a serious offence and

2) is different from the UK position, where the max sentence for a child for a serious offence is the same as a 21 year old.

Having given the matter consideration, Ministers have determined that the 2014 Law as currently drafted should be amended in order to allow for a child to be detained for committing a serious offence, as well as murder. The Ministers consider that the nature of serious offences is such that, even though they have been committed by a child, the public needs to be protected against any risk of re-offending.

In view of the above, the Law Draftsman is asked to draft an amendment to Article 5 of the 2014 Law to enable a child under the age of 15 who is convicted of a serious offence to be detained for the same maximum period as could an adult.

3) Role of the Placement Panel with regard to children and young people

Article 18 of the 2014 Law sets out the functions of the Young Person’s Placement Panel (“the Panel”) which include:

1) determining the appropriate place of custody for a young person on remand or following a sentence of youth detention; and

2) periodically reviewing that placement.

Under the 2014 Law as currently drafted the Panel has no role in relation to:

a) children, or

b) young people if they are detained for a serious offence or murder (other than with regard to arranging delivery of young people to a place of detention as directed by the Royal Court)

The Ministers have determined that 2014 Law should be amended to broaden the Panel’s functions and responsibilities, as set out below in sections 3a – 3c below. The Law Draftsman is asked to amend the 2014 Law to reflect these objectives.

3a: Children on remand

The 2014 Law should set out that the Panel must determine the appropriate place for a child to be held on remand in addition to determining the place that a young person is held on remand (as currently set out in Art 18 (a)). The Panel must review its decisions concerning place of remand in relation to both children and young people (Art 18(b)).

3b: Children and young persons held pending direction from the Secretary of State

At present the 2014 Law provides that the Royal Court determines the place where a child or young person is held following conviction and sentence for murder or a serious offence, pending a direction from the Secretary of State as to the place of detention under Article 5(2) or 5(4) of the 2014 Law.

Instead we propose that, as in other cases, the Panel should be empowered to determine the appropriate place for the particular child or young person to be held, pending direction from the Secretary of State. For these purposes the provisions in Articles 7(2) and 7(3) should apply to a child as they would to a young person so that by default the court is required to order that the child or young person is detained in an appropriate place of custody and until the Panel can make its determination as to which place of custody the child or young person will be held in secure accommodation.

In-line with the functions set out in Art 18(b), the Panel must review that placement, and where it appropriate to do so.

3c: Children and young persons detained on the direction of the Secretary of State

The Law should set out that the Panel must provide its written opinion to the Secretary of State as to whether or not there is an appropriate place for a child or young person convicted for a serious offence or for murder to be detained in Jersey. This could be either for the entire period of their sentence or for part of their sentence. In giving this opinion the Panel must take into account all the matters set out in Art 19 of the 2014 Law.

The Panel must prepare this recommendation as soon as is reasonability practical, although the Law should not specify a given time frame (eg: in a least 28 days) as any given timeframe may prove inappropriate on a case-by-case basis, for example in the event that specialist reports must be prepared.

In the event that the Secretary of State directs that either the whole or part of the child or young person’s sentence should be served in Jersey, then in-line with the functions set out in Art 18(b), the Panel must review that placement. Where the Panel thinks it appropriate to do so, the Panel must recommend to the Secretary of State that the child or young person be moved to another place, which may be another appropriate place of custody in Jersey or a different place entirely (i.e. where it becomes clear that the sentence will, after all, need to be served off island).

For the avoidance of doubt the new provisions should make it clear that the Secretary of State may direct the place of detention be in Jersey if, in the Panel’s opinion, there is an appropriate place of detention in Jersey.

When making any recommendation or decision, or giving any opinion, under these provisions the Panel should be required to take into account the same matters as they are required to take into account by Article 19 of the 2014 Law when exercising the other functions conferred on them. Extending the remit of the Panel ensures that matters relating to the place of remand and detention of all children and young people (regarding of whether in relation to a lessor or a serious offence) are considered in the same manner, and balanced against the needs of other children and young people in that place of detention or remand.

4) Status of children and young people who are detained or on remand

Under the Children (Jersey) Law 2002 the Minister has specific responsibility towards Looked After Children (LAC). As it stands at the moment:

children and young persons detained on remand are LAC, if remanded for more than 24 hours [7]; plus
under the 2014 Young Offenders Law (as currently drafted) young persons sentenced to youth detention for a lesser offence will also be LAC.

The Ministers have determined however, that the 2014 Law should be amended to ensure that under the 2002 Law, LAC status should be extended and should include:

any child or young person on remand
any child or young person sentenced for a lesser or serious offence
any child or young person being held prior to the Secretary of State determining the place of sentence
any child or young person serving part of their sentence in Jersey, as determined by the Secretary of State.

This includes children and young people who are detained and placed by the Placement Panel, in Greenfields, the prison or the YOI. (Note: in the event the remand fostering is introduced in future, it will also include these children).

For the purpose of these instructions these children are referred to as Detained LAC, as distinct from:

General LAC: General LAC being children/young people who are in the care of the Minister but are not in secure accommodate
Secure LAC. Secure LAC being LAC placed in secure accommodation by the HSSD Minister as they likely to suffer harm/injure themselves or others – as per Art 22 (1) of the 2002 Law. Secure LAC, does not include children detained under previous of the Mental Health Law (as per Art 5 (1) of the 2002 Secure Accommodation Order) or Detained LAC.

In determining that all the children and young people set out in 4 ii above are Detained LAC, the effect that Ministers want to achieve is that the day-to-day experience of both Detained and Secure LAC will be broadly the same with services focusing on their welfare and their needs, as opposed to their deeds.

Secure LAC are, as per Art 22 of the 2002, placed in secure accommodation. In practice this means that they are placed in Greenfields. Greenfields becomes, therefore, a place of secure accommodation for Secure LAC and a place of detention for Detained LAC, regardless of whether that is for the purposes of remand, youth detention (lessor offence) or sentencing (serious offence or murder).

The provisions set out in Art 22 of the 2002 Law only apply to Secure LAC in secure accommodation, not Detained LAC in secure accommodation or Detained LAC in other places of detention. This will need to be reflected in the 2005 Secure Accommodation Order.

The Law will need to ensure that the Health and Social Services Minister has the powers necessary to provide for the needs of Detained LAC, regardless of the place of detainment. This includes in relation to:

- a general duty to safeguard and promote the welfare of the Detained LAC (as per Art 19, 2002 Law)

- ascertaining the wishes/feelings of Detained LAC plus their parents/carers etc. with regard to any decisions taken in respect them, and, in so doing, having consideration of factors such as their age, religious persuasion etc.

- provision of advice/befriending

- provision of social work support

- contribution or grant in relation to education or training

The Minister for Health and Social Services will not be responsible for the provision of accommodation where the Placement Panel determines that the Detained LAC should be accommodated either in prison, the YOI or a facility outside Jersey. Responsibility for the provision of this accommodation, and the associated costs, will remain the responsibility of the Home Affairs Minister as per the current arrangements.

The remit of the Placement Panel will be on Detained LAC. It will not be extended to children/young people on care orders. Specific provisions relating to use of secure accommodation in relation to children on care orders need to be made separately within the Children’s Law (as they currently are), it should not fall under the remit of the Placement Panel.

5) Art 32, 2014 Law transitional provision

At the point at which the amended 2014 Law comes into force any child or young person already on remanded or sentenced to detention will be deemed to be detained under the 2014 law as opposed to under the 1994 and hence:

a) the Panel’s powers of review will extend to them

b) they will have Detained LAC status and the relevant provisions of the 2002 Law will apply.

However, if a young person already detained under the 1994 Law, would have a lower maximum sentence applied under the 2014, this lower sentence will not have effect. (For example, a 17 year old already sentenced for lessor offence to more than 12 months under the 1994 shall not have that sentence reduce to the 12 months maximum imposed under the 2014).

Version 5: Jan 2016

[1] CAVA includes the Ministers for Home Affairs, Health, Education, Housing and Social Security..

[2] The Ministers referred to are the members of the Children and Vulnerable Adults Policy Group (CAVA). This includes the Ministers for Home Affairs, Health, Education, Housing and Social Security. The collective position of the CAVA Ministers is supported by the Home Affairs Minister, as Minister responsible for the Criminal Justice (Young Offenders) Law 2014.

[3] See the Loi (1851) autorisant l’établissement des règlements sur la police des chemins.

[4] See Article 45 of the 1956 Law, inserted by R&O.4904, which was made under the 1851 Order.

[5] See the Policing of Parks (Jersey) Regulations 2005 (“the Parks Regulations”), the Policing of Beaches (Jersey) Regulations 1959 (“the Beaches Regulations”), and the Policing of Roads (Jersey) Regulations 1959 (“the Roads Regulations”).

[6] Regulation 3(1)(d) of the Parks Regulations.

[7] The 24 hour caveat is simply because, in practical terms, the Minister may not necessarily be able to undertake their duties in a shorter timeframe without notice.