Detention as a last resort

As noted in Chapter 1 and discussed more fully in Chapter 2, there have been significant fluctuations in the numbers of child and young prisoners in Australia and in England and Wales over the last three decades or so. However, the size of the youth penal estate in itself, whilst important, is only partly relevant to understanding compliance with the human rights requirement of detention as a sanction of last resort. In Australia, the United Nations Committee on the Rights of the Child (1997, 2005, and 2012) has repeatedly raised concerns about the excessive use of penal custody for children and young people and, in particular, Aboriginal and Torres Strait Islander children and young people face the prospect of penal detention at a rate 23 times greater than their non-Indigenous counterparts (AIHW 2019: 9). Equally, whilst the overall reduction in the number of child and young prisoners in England and Wales in the post-2008 period, is welcome, it has to be understood against a backdrop where the same United Nations Committee (1995, 2002, 2008, and 2016) has been persistently troubled by excessive punitivity and where racialised and other forms of disproportionality pertain: ‘the number of children in custody remains high, with disproportionate representation of ethnic minority children, children in care, and children with psycho-social disabilities’ (United Nations Committee on the Rights of the Child 2016: para 77(d)).⁸ We signalled the overrepresentation - in youth justice systems - of Aboriginal and Torres Strait Islander and black and minority ethnic children and young people, children with experience of state care and young people with mental health disorders and/or cognitive disabilities/neurodisabili-ties in Chapter 1 and we return to this phenomenon at various stages of the book and particularly in the two Chapters that follow.

Mandatory and indeterminate sentencing

The jurisdictions of Australia and England and Wales also fail to observe the ‘last resort’ principle in some specific instances due to the use of mandatory custodial sentences. In Australia, Western Australia is the State where mandatory sentencing laws directed towards children and young people are most conspicuous and where such practices were expanded with the passage of the Criminal Law Amendment (Home Burglary and Other Offences) Act 2014 (WA). Section 279(6a) of the legislation actually requires courts to impose custodial sentences on children and young people in cases where three or more domestic burglary offences have been committed. Both the United Nations Committee on the Rights of the Child (2012: para 84) and the United Nations Committee against Torture ((UNCAT) 2014), have recommended the abolition of mandatory sentencing in Western Australia and its most recent expansion has been criticised further by various authoritative organisations including Amnesty International (2015) and the Law Council of Australia (2014), the latter arguing that the laws do not give primacy to the best interests of the child, offend principles of proportionality and negate the ‘last resort’ principle. Similar arguments might be applied in England and Wales where section 28 of the Criminal Justice and Courts Act 2015 introduced minimum mandatory custodial sentences for children and young people convicted of a second knife offence (including carrying a knife). Furthermore, section 90 of the Powers of the Criminal Courts (Sentencing) Act 2000 provides the sentence of‘Detention During Her Majesty’s Pleasure’ (DHMP), a mandatory sentence that applies in cases where a child or young person is convicted of murder and, in essence, it equates to a sentence of life imprisonment. Some 117 children were sentenced to DHMP between 2008 and 2014, including a child just 13 years old at the time of sentencing (Children’s Rights International Network 2015: 36). Such prescriptive mandatory sentencing - in both Western Australia and in England and Wales - is clearly at odds with the ‘last resort’ principle.

The United Nations Committee on the Rights of the Child (2007: para 77) has stated that: ‘no child who was under the age of 18 at the time he or she committed an offence should be sentenced to life without the possibility of release or parole’. Similarly, the United Nations Human Rights Council (UNHRC) (2014: 32) urges States to ensure that ‘life imprisonment [is never] imposed for offences committed by persons under 18 years of age’. Further, the United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment has stated that ‘life imprisonment and lengthy sentences.. .have a disproportionate impact on children and cause physical and psychological harm that amounts to cruel, inhuman or degrading punishment’ (Méndez 2015: para 74).

The imposition of life sentences and/or indeterminate sentences on children and young people, therefore, perhaps represents the most flagrant violation of the ‘shortest appropriate period of time’ principle. Notwithstanding this, in Australia the issue of indeterminate sentencing has arisen particularly in relation to children and young people with mental health disorders and/or cognitive disabilities/neu-rodisabilities. In one case, an intellectually disabled Indigenous man spent over 11 years in prison after being deemed unfit to stand trial for an offence committed when aged 14 years (Western Australian Association for Mental Health (WAAMH) 2016). In England and Wales in the period 2005-2012, 325 children were subject to so-called ‘indeterminate sentences for public protection’ (Ministry ofjustice and National Statistics 2013: 58).