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Powers of Criminal Court (Sentencing) Act 2000, s. 90

Powers of Criminal Court (Sentencing) Act 2000, s. 90

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the papers were then passed to the Home Secretary, who could make a further adjustment.

In the Bulger case, the trial judge recommended that Venables and Thompson serve a minimum period of eight years; this was raised to 15 years by the Home Secretary at the time,

Michael Howard. The case was taken to the European Court of Human Rights, which found

breaches of the European Convention on Human Rights in terms of sentencing practice and

also that the defendants did not receive a fair hearing in accordance with Art. 6(1).

A Practice Direction followed the case.25 The Practice Direction is an important development in youth justice, which tackles many of the difficulties apparent in the Bulger case and

suggests changes necessary to ensure compliance with the European Convention on Human

Rights as required by the Human Rights Act 1998. The Practice Direction provides for special measures to be introduced to ensure a fair hearing at trial. The measures required will

vary depending on the particular child’s needs, assessed by the trial judge, ‘the steps which

should be taken to comply with the direction should be judged, in any given case, taking

account of the age, maturity and development (intellectual and emotional) of the young defendant on trial’ (para. 2). The added pressure of being tried with an adult is acknowledged

by the Practice Direction and it states that a court should order separate trials for juveniles

and adults, unless it is in the interests of justice to do otherwise. It also recommends that

young defendants should visit the court out of hours to become accustomed to the setting.

The level of formality of the trial should be reduced, including removal of wigs and gowns,

changes to the courtroom and limitations on access. Many of these features are already

present in the youth court. Of course, a murder trial will always be conducted in the Crown

Court, whatever the age of the defendant. The Practice Direction suggests that, in the court,

everyone should sit at the same level, and the defendants should be able to sit next to their

family and near the lawyers. (In the Bulger trial the defendants actually sat in a raised dock

so that they could view the proceedings.) The Practice Direction suggests that only people

with a direct interest in the outcome of the trial should be allowed into the court, but if press

access is restricted, a provision should be made for the trial to be viewed through a TV link

into another area. The Practice Direction raises a number of issues that have been addressed

in the Youth Justice and Criminal Evidence Act 1999 in respect of child witnesses. (These

provisions are discussed in Chapter 9.)



Youth rehabilitation order

The youth rehabilitation order (YRO) is the standard community sentence to be used for

juveniles. As a range of requirements can be attached to the order, it should offer a flexible

way to respond to the the juvenile’s circumstances by a menu of interventions.

The requirements that can be attached to a YRO are:





activity requirement for up to 90 days;







curfew requirement;







exclusion requirement for up to three months;







local authority residence requirement;







education requirement;







mental health requirement;







unpaid work requirement for between 40 and 240 hours (16–17 year olds);







drug testing requirement;







intoxicating substance requirement;

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Chapter 13 Youth justice







supervision requirement;







electronic monitoring requirement;







prohibited activity requirement;







drug treatment requirement;







residence requirement, where the offender was 16 or over at the time of sentence;







programme requirement;







attendance centre requirement;







intensive supervision and surveillance requirement;







intensive fostering, where the court is satisfied that the offending behaviour was significantly due to the juvenile’s living circumstances and fostering will assist with rehabilitation. Parents and the local authority must be consulted.



For the court to sentence a person to a YRO it must be satisfied that the offence is sufficiently serious and that any restriction of liberty is proportionate to the seriousness of the

offence. If the YRO is breached, the court may order a fine, amend the YRO or revoke the

YRO and re-sentence. Further detail on each requirement of the YRO is contained in Practice

Guidance (2010).26



Chapter summary



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The law relating to youth justice is substantially contained in the Crime and Disorder Act

1998, the Youth Justice and Criminal Evidence Act 1999 and the Powers of Criminal Courts

(Sentencing) Act 2000. There is an increasing emphasis on the prevention of youth crime.







The role of a social worker in youth justice is varied and may include: membership of a

youth offending team; acting as designated responsible officer on a child safety order;

advising, assisting and befriending a young person under a supervision order; acting as

an appropriate adult; and contact with young people in secure accommodation.







The Crime and Disorder Act 1998 introduced new structures for youth justice. Institutional arrangements are underpinned by s. 37, which introduces a statutory aim to prevent offending by children and young persons. Youth offending teams with multi-agency

membership have been introduced and every Social Services Department must produce a

youth justice plan.







Youth justice services may include: assessment of children and young persons for ­rehabilitation

programmes; provision of support whilst children and young persons are ­remanded on bail;

placements in local authority secure or non-secure accommodation; provision of court reports; supervision of young persons and post-release supervision. A ­National Youth Justice

Board is established to oversee the delivery of youth justice services.







Section 17 of the CDA 1998 imposes a duty on local authorities and police authorities to

do all they reasonably can to prevent crime and disorder. Parenting orders, child safety

orders, child curfew schemes and an enhanced local authority duty of investigation are

particularly relevant orders in respect of preventing youth crime.







The anti-social behaviour order is a civil order to prevent harassment, alarm or distress,

breach of which is a criminal offence. It is due to be replaced by Injunctions and Criminal

Behaviour Orders.



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Exercises







Since the abolition of the doli incapax rule, all children will now acquire criminal responsibility at the age of 10.







Targets have been introduced for reducing delays in the youth justice system, with particular emphasis on persistent young offenders, defined as: ‘a young person aged 10–17

who has been sentenced by a criminal court in the United Kingdom on three or more

separate occasions for one or more recordable offences, and within three years of the last

sentencing occasion is subsequently arrested or has an information laid against them for

a further recordable offence’.







If a child is interviewed at the police station, he should be accompanied by an appropriate adult, whose role is to safeguard the interests of children and young persons detained

by the police, and ‘not . . .  to act simply as an observer; . . . the purposes of his presence are,

first, to advise the person being questioned and to observe whether or not the interview is

being conducted properly and fairly, and secondly, to facilitate communication with the

person being interviewed’.







Most criminal cases taken against juveniles will be heard in the youth court in which magistrates drawn from a special panel hear cases. Proceedings are not open to the public and

there are restrictions on press reporting. Certain serious offences (murder and offences

carrying a maximum penalty of 14 years’ imprisonment) will be tried in the Crown Court.







If the court makes a finding of guilt, disposal options include detention and training orders and youth rehabilitation orders with conditions.



Exercises

1. Jeannie, aged 15, has recently started going out with James, who is 28. Her parents are very

unhappy about the relationship and think she may also be taking drugs. She has failed to attend school today and is picked up by the police in an area of town known for prostitution,

in possession of £100 cash and £50-worth of cosmetics. Just as the police are about to drive

off, James rushes over, shouting at Jeannie not to talk, and damages the police car with an

iron bar. At the police station the custody officer calls Jeannie’s parents, who state that ‘she

is no longer our daughter’ and refuse to come to the station. A social worker is called to be

with Jeannie and notices injection marks on her arm. Jeannie admits to theft of the cosmetics but denies any knowledge of the money. She has no previous convictions. Initially she

claims not to know James, but after a four-hour period of questioning she breaks down and

states that he is her pimp, the money is for him, but she is frightened that he will beat her

up if he finds out she has told the police.

Consider the responsibilities of the social worker called to the station. If the social

­worker fulfils the role adequately, what changes to the above scenario might occur. What

are the options for responding to Jeannie’s situation?

2. Michael, a 15-year-old, has had a turbulent childhood; he has been living in a residential

children’s home for the last two years and frequently fails to attend school. He has received

cautions from the police for criminal damage. Recently he has become friendly with Joe,

who is aged 19 and lives in a bedsit near Michael. Joe has had three appearances before the

youth court for shop theft, criminal damage and public order matters. One night Michael

is stopped on the street by two police officers who have been notified of a break-in at a

local off-licence store. The police had been informed that two youths were seen running



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Chapter 13 Youth justice



away from the store and suspect that Michael is one of them. Michael denies any knowledge

or involvement in the break-in. The police are still suspicious and take Michael to the police

station to assist them with their inquiries. After two hours of questioning, Michael confesses

and tells the police where Joe lives; the police then contact Michael’s social worker. At Joe’s flat

the police find ten bottles of gin and, on further searching, discover a quantity of cannabis. Joe

is charged with burglary and possession of drugs and Michael is charged with assisting burglary.

Were the correct procedures followed at the police station? If the offences are prosecuted,

which court will hear the case against Michael? If the case is proven, what is the likely disposal?



Websites

The Home Office site provides a mass of information on the Crime and Disorder Act 1998

and associated youth justice reforms. The introductory guide to the Act, and guidance on each

of the new orders is available. Criminal statistics and research publications are also available:

www.homeoffice.gov.uk



The Youth Justice Board website provides a wealth of information on youth justice issues:

www.justice.gov.uk/youth-justice



The National Association for Youth Justice is a campaigning organisation for the rights of

children and young people in the criminal law and the website includes useful briefing notes:

www.thenayj.org.uk



The national Appropriate Adult Network website includes useful information about the role:

www.appropriateadult.org.uk



Further reading

The Youth Justice Board has issued National Standards and Guidance for Youth Justice:

HMCS and YJB (2010) Making it Count in Court (2nd edn). London: YJB and HMCS.

YJB (2010) ‘The Youth Rehabilitation Order and Other Youth Justice Provisions of the Criminal Justice and Immigration Act 2008: Practice Guidance for youth offending teams’.

London: YJB.

YJB (2013) National Standards for Youth Justice Services. London: YJB.

The journal Youth Justice includes a range of relevant articles.

A number of specialist texts consider youth justice in more detail:

Goldson, B. (ed.) (2000) The New Youth Justice. Lyme Regis: Russell House Publishing.

Leng, R., Taylor, R. and Wasik, M. (1998) Blackstone’s Guide to the Crime and Disorder Act

1998. London: Blackstone Press.

Moore, T. and Wilkinson, T. (2001) Youth Court Guide. London: Butterworths.

Muncie, J (2005) Youth and Crime: A Critical Introduction (3rd edn). London: Sage.

Pickford, J. and Dugmore, P. (2012) Youth Justice and Social Work (2nd edn). London: Sage.

Stephenson, M., Giller, H. and Brown, S. (2011) Effective Practice in Youth Justice (2nd edn).

London: Routledge.

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Notes



Critical examination of the youth justice system features in the following articles:

Arthur, R. (2005) ‘The Youth Justice System in England and Wales: complying with international human rights law’ 3 International Family Law p. 3.

Ball, C. (2004) ‘Youth justice? Half a century of responses to youth offending’ Criminal Law

Review p. 167.

Fionda, J. (1999) ‘New Labour, old hat: youth justice and the Crime and Disorder Act 1998’

Criminal Law Review p. 36.

Gelsthorpe, L. and Morris, A. (1999) ‘Much ado about nothing – a critical comment on

key provisions relating to children in the Crime and Disorder Act 1998’ 11(3) Child and

­Family Law Quarterly p. 209.

Hollingsworth, K. (2012) ‘Youth Justice in the Big Society’ 34 Journal of Social Welfare and

Family Law p. 241.

Parry, G. (2005) ‘Protecting the juvenile suspect: What exactly is the appropriate adult supposed to do? Child and Family Law Quarterly p. 373.

Smith, R. (2005) ‘Welfare versus justice – again!’ 5(1) Youth Justice p. 3.

For further information and discussion of anti-social behaviour see:

Anderson, J., Falkowski, D., Greatorex, P. and Tankel, B. (2011) Anti-Social Behaviour Law

(2nd edn). Bristol: Jordan Publishing.

Ashworth, A. (2004) ‘Social control and “anti-social behaviour”’ 120 Law Quarterly Review

p. 263.

MacDonald, S. (2006) ‘A suicidal woman, roaming pigs and a noisy trampolinist: refining

the ASBO’s definition of “anti-social behaviour”’ 69(2) Modern Law Review p. 183. (Suggests that ASBOs have been employed for social control at the expense of more constructive forms of intervention.)



Notes

  1For a full discussion of this case see S. Macdonald (2007) ‘ASBO prohibitions and young

people – Hills v Chief Constable of Essex Police’ 19(3) Child and Family Law Quarterly p. 374.

  2Examples taken from S. Macdonald and M. Telford (2007) ‘The use of ASBOs against

young people in England and Wales: lessons from Scotland’ 27(4) Legal Studies p. 604.

  3For a full review of changes in policy see: C. Ball (2004) ‘Youth justice? Half a century of

responses to youth offending’ Criminal Law Review p. 167.

  4Home Office Research Report 64 (2012) ‘An estimate of youth crime in England and

Wales: Police recorded crime committed by young people in 2009–10’.

  5Audit Commission (1996) ‘Misspent Youth: Young People and Crime: A Consultation

Paper’, identified a number of criticisms, including: delay in processing young offenders

through the courts; little being done to address offending behaviour; lack of preventive

work with potential offenders; and uncoordinated work between the agencies involved

in youth justice. These deficiencies were taken up in the white paper published by the

(then) newly elected Labour Government, ‘No More Excuses: A New Approach to Tackling Youth Crime in England and Wales’ (1997) and was followed by the Crime and

Disorder Act 1998.

  6HM Treasury and DCSF (2007).

  7Children Act 1989, Sch. 2, para. 7.

  8This classification is adopted by A. Bainham (1998) Children: The Modern Law, Bristol:

Family Law, Jordan Publishing.

  9The term ‘community safety’ is increasingly used in preference to crime prevention.

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Chapter 13 Youth justice



10



Home Office (1998) ‘Establishing Youth Offending Teams’ provides some guidance on

the role of YOTs.

11

See www.youth-justice-board.gov.uk.

12

See discussion by L. Gelsthorpe and A. Morris (1999) ‘Much ado about nothing – a

­critical comment on key provisions relating to children in the Crime and Disorder Act

1998’ 11(3) Child and Family Law Quarterly pp. 209–21.

13

C. Piper (1999) ‘The Crime and Disorder Act 1998: child and community “safety”’ 62(3)

Modern Law Review pp. 397–408.

14

Home Office and Ministry of Justice (2013) ‘Anti-social behaviour order statistics:

­England and Wales 2012’.

15

Home Office (1998) ‘Introductory Guide to the Crime and Disorder Act 1998’. London:

Home Office.

16

UNCRC, Art. 40(3) requires establishment of a minimum age below which children shall

be presumed not to have the capacity to infringe the penal law.

17

Children and Young Persons Act 1933, s. 50.

18

For further discussion of this role see: B. Littlechild (1998) ‘Appropriate adult services’

144 Childright pp. 8–9, and H. Pierpoint (1999) ‘Appropriate practice? Young suspects’

rights under UNCRC’ 162 Childright pp. 8–10.

19

Cited in T. Moore and T. Wilkinson (2001) Youth Court Guide. London: Butterworths.

20

Home Office (1998) ‘Inter-departmental circular on establishing youth offending teams.

21

Leach v. Chief Constable of Gloucestershire [1999] 1 All ER 215.

22

For the evaluation of a volunteer scheme, see T. Nemitz and P. Bean (1998) ‘The effectiveness of a volunteer appropriate adult scheme’ 38(3) Medicine, Science and the Law

pp. 251–6.

23

Children and Young Persons Act 1933, s. 47(2).

24

P. Tain (1999) ‘Youth Justice’ Solicitors Journal 18 June, p. 581.

25

Practice Direction (Crown Court: Trial of Children and Young Persons) [2000] 2 All ER

285.

26

YJB (2010) The Youth Rehabilitation Order and Other Youth Justice Provisions of the Criminal

Justice and Immigration Act 2008: Practice Guidance for youth offending teams. London: YJB.



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Part 3

Vulnerable adults

Chapters:

14Adult social care

15Mental health

16Mental capacity

17Adult safeguarding

18Criminal justice

19Welfare and homelessness

20Asylum



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Chapter 14

Adult social care

Learning objectives

To develop an understanding of the following:





The legal context to work with adult service users.







The legal framework for adult social care provided by the Care Act 2014.







The concept of ‘wellbeing’.







Personalisation.







The duty to assess for care and support services, provision of services and implications of

resources.







The principles of charging for services.







Avenues for complaints in respect of assessment and provision.







The role of carers and provision of support for carers.







The provision and regulation of domiciliary and residential services.



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Chapter 14 Adult social care



Talking Point

The Care Act represents the most significant reform of care and support in more than

60 years, putting people and their carers in control of their care and support. For the

first time, the Act will put a limit on the amount anyone will have to pay towards the

costs of their care.

And, crucially, the Act delivers key elements of the Government’s response to the

Francis Inquiry into the awful events at Mid Staffordshire hospital, increasing transparency and openness and helping drive up the quality of care across the system.

Care and support is something that nearly everyone in this country will experience at

some point in their lives; even if you don’t need care yourself, you will probably know

a family member or friend who does, or you may care for someone. And many more

of us will need care in the future so it is important for us to have a modern system that

can keep up with the demands of a growing ageing population.

Until now it’s been almost impossible for people who need care, carers, and even

those who manage the care system, to understand how the previous law affecting

them worked. Over nearly 70 years it has been added to again and again and is out of

date and confusing. The Care Act has created a single, modern law that makes it clear

what kind of care people should expect.

To help make things clearer we have introduced a minimum eligibility threshold

across the country – a set of criteria that makes it clear when local authorities will have

to provide support to people. Until now, local authorities have been able to decide this

threshold themselves, meaning decisions varied from place to place. And, in the face

of financial pressures, a number of councils have raised their threshold level in recent

years. In future, councils will not be allowed to tighten their thresholds beyond this

minimum threshold, giving those who are eligible peace of mind that they won’t have

their care taken away from them because of some arbitrary change to the criteria.

This isn’t just about making things easier to understand – it’s also about changing the

way we care for people. Central to the Act is the concept of wellbeing. First and foremost councils will now have a duty to consider the physical, mental and emotional

wellbeing of the individual needing care. They will also have a new duty to provide

preventative services to maintain people’s health.

Until now, we’ve had a one size fits all approach to care. The focus has been on what

disabilities someone has, or what services local authorities can provide, rather than

on the individual. That’s disempowering. So for the first time the system will be built

around each person – what they need, how they can best be cared for, and what they

want. By providing and legislating for Personal Budgets in the Care Act we are giving

people the power to spend money on tailored care that suits their individual needs as

part of their support plan.1

The above passages are an extract from the statement by Care and Support Minister Norman

Lamb introducing the scope of the law reform provided by the Care Act 2014. The reforms,

based on the work of the Law Commission, are significant and whilst some elements inevitably

require clarification, an accessible single piece of legislation for adult social care is welcome.

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Adult service users



Introduction

This chapter is divided into three sections: introducing the legal framework for work with

adult service users; assessment for services; and two particular areas of service provision –

domiciliary care and residential accommodation.

Social work with adult service users is the focus of the next four chapters. The law in this

area is complex and has attracted much criticism over the years. It is encouraging that this area

has been subject to various reviews which recognise the changing context to adult social care.

Changes to policy were evident in the green paper, ‘Independence, Well being and Choice’

(2005), the white paper, ‘Our Health, Our Care, Our Say’ (2006), ‘Putting People First’

(2007), and ‘The case for change – why England needs a new care and support system’ (2008),

amongst others. Further, the Coalition Government published ‘A Vision for Adult ­Social Care:

Capable Communities and Active Citizens’ (2010) and established the Dilnot Commission

which reported in 2011 on the funding system for care and support, recommending an absolute cap on any individual’s contribution to their own social care costs. In terms of law reform,

the work of the Law Commission on adult social care law is most significant and forms the

basis of the new Care Act 2014. With over £20 billion annual expenditure by local authorities on adult social care, and 1.77 million people in receipt of services, this is an area of great

social and economic significance. The need for reform was evident on a number of levels.

The relevant law developed in a piecemeal fashion, since the National Assistance Act 1948

resulting in a framework both extensive and complex which contains overlapping and conflicting obligations. There are concerns that some of the language used is outdated and

oppressive and further that elements of the law might conflict with human rights principles.

The aim of the Law Commission was to make recommendations which would provide a

clearer and more coherent legal framework for adult social care, with emphasis on simplification, consistency, transparency and modernisation. Ultimately, these objectives may be

achieved by the resulting single consolidated statute, the Care Act 2014. It is important to

remember that, for a complete understanding of the law relating to adults, other legislation

such as the Mental Capacity Act 2005 and the Mental Health Act 2007 must also be considered.

The chapter commences with an outline of the range of adult service users to whom the

new Act will apply, recognising that this range will present a variety of needs and dilemmas

for the social work practitioner. It is important that this diversity is fully recognised and that

generalised assumptions are not made. The law, however, has tended to operate in relation

to particular categories of people or particular needs or scenarios. That approach was evident

in previous legislation which tended to focus on, for example, older people or people with

physical disabilities. As a preliminary issue, therefore, a consideration of the categories of

service users that the law recognised and the former legislation, now repealed by the Care

Act 2014, is set out by way of reference for understanding ongoing cases and for comparison.

Throughout the chapter, case law decided under the previous legal framework is included

where it establishes principles which are likely to continue to have application. At the time

of writing, the Care Act 2014 has received Royal Assent but the guidance and regulations

which will inevitably follow have not been finalised.



Adult service users

Whilst the law can separate individual characteristics of adults, and organisational teams

may also reflect these categories, the reality of the individuals encountered in everyday

practice is less clear cut. For example, some elderly people will also have a physical

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