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IICSA Independent Inquiry into Child Sexual Abuse

Sexual Abuse of Children in Custodial Institutions: 2009-2017 Investigation Report

E.1: The fact of custody

1. Beyond the cultural issues discussed in Part D, some experts have argued that children can never be safe from sexual abuse in custody, and that the best way to protect children from abuse is not to detain them at all.[1]

2. Some complainants gave evidence on this issue. Peter Smith said imprisoning children should be a last resort.[2] CI-A30 said consideration should be given to whether some children really needed to be in custody, or whether they were troubled children from poor backgrounds who had done “lots of small things that build up into a prison sentence”. He questioned whether for some children the money would be better spent on intensive support rather than custody.[3][4]

3. Institutional witnesses also addressed this.

4. The written evidence from Dr Laura Janes, Legal Director of the Howard League for Penal Reform, was that “the starting point is that prison is inherently risky and it will be impossible to eradicate the risk of sexual abuse for children in penal detention”. The Howard League has long advocated for a penal policy that detains only a very small number of children who genuinely cannot be managed safely in the community.[5] Its position is that the population of children in custody should continue to fall.[6] It has concerns that children in care are criminalised for minor incidents (which police consider care homes should be able to deal with) and placed there to punish and control them. Efforts should be made to reduce criminalisation of children in care.[7]

5. Dr Janes’ understanding is that of the one-third of children in custody who are on remand, over half will not receive a custodial sentence. This suggests they ought not to be there. Her view is that many children are remanded into custody simply because there is not appropriate provision available for them in the community[8] and that greater caution should be taken before remanding a child in custody. She thought research into any regional variations in local authority provision would be very worthwhile.[9]

6. Dr Janes’ experience was that short Detention and Training Orders (DTOs) were inappropriate for children (noting that the disruption can be particularly difficult for them). She considered that DTOs should be abolished. At the other end of the spectrum, she had observed an increase in the average length of custodial sentences for children. She considered that, under the current guidance, sentences often gravitate towards being offence-specific rather than being focussed on the specific child.[10]

7. Carolyne Willow, a children’s rights campaigner and founder of Article 39, considers that penal institutions are fundamentally unsafe for children and that the only way of preventing sexual abuse in child prisons is to stop incarcerating children.[11] In short, prison is no place for a child.[12]

8. On behalf of the Youth Custody Service, Sara Robinson, Interim Executive Director, said children can never be entirely protected from abuse in any setting. There are always going to be individuals who will take an opportunity to abuse children; all that can be done is to try and minimise the risk as far as possible. She stressed that custody is seen as very much a last resort and that the Youth Custody Service works closely with the Youth Justice Board and Youth Offending Teams to try and prevent the need for custody. While there was a significant reduction in the number of children in detention between 2006/07 and 2017/18, numbers have reached “a kind of steady state” and may have reached their lowest point. She accepted the remand population was quite high, around a quarter of the children in detention,[13] with children being remanded in custody due to limited specialist provision in the community. The Youth Custody Service’s policy unit is examining whether there are other things that can be done to reduce the number of children in detention further, particularly in the remand population.[14]

9. We considered whether the mechanisms for sentencing children effectively leave magistrates and judges with limited choices for children. At present:

  • A DTO is a type of custodial sentence imposed on children aged 12–17. It would only be imposed if the offence is so serious that neither a fine nor a community sentence is justified, or certain other conditions are met, and a custodial sentence of longer than two years is not warranted. The Secretary of State for Justice has not appointed a date from which DTOs may be imposed on children aged 10 or 11. In the case of children aged 12–14, the court must be of the opinion that the child is a ‘persistent offender’ before it may impose a DTO. Half the sentence is spent in custody and the other half is spent under the supervision of the Youth Offending Team in the community. The minimum period of a DTO is four months and the maximum is two years. There is no power to suspend a DTO.[15][16]
  • Referral Orders may be imposed by the Youth Court or Magistrates’ Court, as well as by the Crown Court on appeal. When a child without any previous finding of guilt pleads guilty to an offence which is punishable with imprisonment in the case of someone aged 21 or over, the court must impose a Referral Order unless the offence carries a sentence which is fixed by law (for example, murder) or the court is proposing to impose a custodial sentence, hospital order, absolute discharge or conditional discharge. If the child has previously been found guilty of an offence, the court may impose a Referral Order. Under a Referral Order, the child meets with the youth offender panel and agrees to undertake activities aimed at preventing reoffending. If the child fails to agree to this or does not comply, the youth offending panel may refer the case back to the court.[17]
  • The length of any custodial sentence imposed must be the shortest term commensurate with the seriousness of the offence, regardless of whether the offender is an adult or a child.[18]
  • When sentencing children, the court must consider the welfare of a child.[19]
  • Current sentencing guidelines applicable to child offenders emphasise that custody is a measure of last resort and that the younger the child, the shorter the custodial sentence should be.[20]



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