Response to NIO’s consultation on the Review of the                         Sentencing Framework in Northern Ireland

                              Children’s Law Centre
                                           May 2005

                                         Introduction

The Children’s Law Centre is an independent charitable organisation established in September 1997 which works towards a society where all children can participate, are valued, their rights respected and guaranteed without discrimination and every child can achieve their full potential.
We offer training and research on children’s rights, we make submissions on law, policy and practice affecting children and young people and we run an advice/information/representation service. We have a dedicated free phone advice line for children and young people called CHALKY and a youth advisory group called Youth @ clc.
Our organisation is founded on the principles enshrined in The United Nations Convention on the Rights of the Child, in particular:
• Children shall not be discriminated against and shall have equal access to protection.
• All decisions taken which affect children’s lives should be taken in the child’s best interests.
• Children have the right to have their voices heard in all matters concerning them.
From its perspective as an organisation, which works with and on behalf of children, both directly and indirectly, the Children's Law Centre is grateful for the opportunity to make this submission to the Northern Ireland Office (NIO) and to offer comments on the Sentencing Framework in Northern Ireland.
General Comments
We note that the document states at para 1.4 that the review of the sentencing framework in Northern Ireland is not relevant to children. While we recognise that the majority of the document applies only to adults, we wish to raise a number of issues in relation to children and young people. We do not wish to comment on the entire content of the document, preferring to remain within our remit and concentrate on the sections of the document relevant from a child protection perspective in order to achieve the most robust sentencing framework which fully protects children and young people.
We are disappointed to note that the NIO has not carried out an Equality Impact Assessment on the possible implications of the review of the sentencing framework on each of the nine groups detailed in section 75 of the Northern Ireland Act 1998. We strongly recommend that the NIO carries out a detailed Equality Impact Assessment, examining in particular the impact of the review of the sentencing framework on children and young people and particular groups of children, including children with a disability following direct consultation with children and young people in compliance with its statutory duty. This is particularly important, not only in relation to section 75, but also in compliance with Article 12, one of the principles of the United Nations Convention on the Rights of the Child (UNCRC) – Respect for the Views of the Child. In examining the Government’s compliance with Article 12, the UNCRC Committee recommended that the Government,
“...take further steps to promote, facilitate and monitor systematic, meaningful and effective participation of all groups of children in society”.
We believe that the NIO should directly consult with children and young people on the review of the sentencing framework in carrying out a full Equality Impact Assessment in order to ensure that it is taking proper account of both the obligations imposed on it under section 75 and the UNCRC. Please provide us with details in respect of the EQIA carried out or details of any preparation for the carrying out of an EQIA including relevant consultation. We would also request details in respect of how the initial screening process was carried out, including the qualitative and quantitative data used.
We are pleased to note the NIO’s commitment to international conventions in relation to young people as expressed at para 3.12. We wish to bring the NIO’s attention to the most relevant conventions in this context, which are the UN Convention on the Rights of the Child, the European Convention on Human Rights, as incorporated by the Human Rights Act 1998, the UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules), the United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines) and the United Nations Rules for the Protection of Juveniles Deprived of their Liberty.

While we welcome the review of the sentencing framework in Northern Ireland and the added protection and clarity that it will introduce by moving closer to the system which currently operates in England, we feel that further consideration and analysis should be given to the Northern Ireland context in terms of any specific needs which exist and should be addressed by the new sentencing framework.

Young People and Sentencing

We note at para 3.12 the aforementioned reference to the international conventions which underpin the less severe treatment of young people as opposed to adults within the criminal justice system. We are pleased to note that reference has been made to this established principle and wish to emphasise the need for proper safeguards for children and young people in custody. This is clearly demonstrated by Jaep Doek, Chair of the UNCRC Committee, who stated that,

“The UK will next be examined by my committee in 2009. That is too long to wait for children whose human rights are being violated today. Urgent action is required to remedy the plight of children in custody...many children are officially classed as too vulnerable for prison service custody, and there are grave and continuing concerns about children’s access to education, health care and protection. My committee recommended in 2002 that detention should only be used as a last resort, yet the UK still locks up more children than most other industrialised countries. Why is this tolerated?”
(Quoted in ‘The Guardian’ 29 Nov 2004 in response to the publication of the CRAE Annual State of Children’s Rights in England Report 2004)

Rule 1 of the United Nations Rules for the Protection of Juveniles Deprived of their Liberty compounds this and states that,

“The juvenile justice system should uphold the rights and safety and promote the physical and mental well-being of juveniles. Imprisonment should be used as a last resort.”
The UNCRC Committee recommended that no child should be tried as an adult (CRC/C/15/Add.188 para 62c). Recommendation171 of the Criminal Justice Review’s published Implementation Plan is to bring 17 year olds within the ambit of the youth courts. While youth courts will bring 17 year olds back into the youth justice system there will still be situations where a child could be tried in an adult court, thus not complying with the UNCRC Committee recommendation. The Committee also recommends that that children should be held separately from adults when detained (CRC/C/15/Add.188 para 62e). Recommendation 172 of the Implementation Plan states that 17 year olds are to be held in Young Offenders Centres or Juvenile Justice Centres where conditions are met. However, this refers only to vulnerable young people and all other 17 year olds will still be held in Young Offenders Centres with over 18s. Young women in need of secure accommodation will also continue to be held in Hybebank Young Offenders Centre, in spite of the Criminal Justice Inspectorate’s findings that a new prison should be provided for women prisoners and that no young girls under the age of 18 should be held in prison (May 2005). Paragraph 26.3 of the UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules) places an obligation on Member States to hold children and adults separately in custody and states that,
“Juveniles in institutions shall be kept separate from adults and shall be detained in a separate institution or in a separate part of an institution also holding adults.”
The UNCRC Committee also stated that the Government should review the status of 17 year olds on remand to give them special protection as a child under the age of 18 (CRC/C/15/Add.188 para 62h).
We also recommend that the NIO is mindful of the implications of T&V v UK (1999), particularly with regard to the granting of anonymity upon release.
We wish to see these issues addressed as a matter of urgency by the NIO in relation to children and young people within the criminal justice system.
Management of Risk Posed by Released Dangerous Offenders
We believe that it is essential that risk be properly assessed to ensure that dangerous offenders are not released until their risk is such that they can be safely supervised in the community as outlined in section 6 of the consultation document. Paragraph 6.6 deals with the management of risk posed by released dangerous offenders and refers to the operation of the non-statutory multi-agency, public protection mechanism in place in Northern Ireland, MASRAM, which assesses and manages the risk posed by sex offenders in the community. From a child protection perspective, it is imperative that these arrangements are placed on a statutory footing, with statutory MASRAM requirements placed on the police, probation, prisons and social services in order to achieve the highest level of public confidence in the management of dangerous offenders and the operation of the most robust system of child protection.
We wish to encourage the NIO to progress with the review of sexual offences in Northern Ireland which was proposed by John Spellar in October 2003. While some of the relevant legislation in operation in England and Wales has been introduced in Northern Ireland, there are still some substantial gaps which exist, thus affording piecemeal protections to children and young people in Northern Ireland. In order to ensure adequate and harmonious protections, this review should be carried out as soon as possible and the gaps identified addressed as a matter of urgency.
Electronic Monitoring
While we recognise that it is not proposed in the consultation document to use electronic monitoring on children or young people, we wish the NIO to note that the use of electronic monitoring on children and young people is in our opinion in breach of the European Convention on Human Rights and the UNCRC. In the context of Northern Ireland, its potential use against children and young people raises some very serious additional child protection and human rights issues. In light of these issues, we wish the NIO to clearly state that electronic monitoring will never be used on children and young people in Northern Ireland.


Conclusion
The Children’s Law Centre is grateful to have the opportunity to comment on the NIO’s Review of the Sentencing Framework in Northern Ireland. We hope that our comments have been constructive and useful to the NIO and are more than happy to meet with NIO staff to discuss anything in this response. We wish to be kept informed of progress in the development of the Sentencing Review and look forward to the issues raised in this response being addressed, taken forward by the NIO and hearing from the NIO in the near future.