Legal Commentary
| Date | 01 August 2008 |
| Published date | 01 August 2008 |
| DOI | 10.1177/1473225408091377 |
| Subject Matter | Articles |
L E G A L C O M M E N T A R Y
Copyright © 2008 The National Association for Youth Justice
Published by SAGE Publications (Los Angeles, London, New Delhi and Singapore)
www.sagepublications.com
ISSN 1473–2254, Vol 8(2): 162–171
DOI: 10.1177/1473225408091377
Legal Commentary
‘Best Foot Forward’: Fairness, Assistance and
Support for Children in Anticipation of Early Release
Nigel Stone
Correspondence: Nigel Stone, School of Social Work and Psychosocial Sciences,
Elizabeth Fry Building, University of East Anglia, Norwich, NR4 7TJ, UK.
Email: n.stone@uea.ac.uk
The diffi culties posed when prosecuting children before the Crown Court – in seeking to ensure
their understanding of procedure and to enhance their capacity to participate in proceedings –
are now much better appreciated (see for example Stone, 2006). However, little attention has
been paid to the demands of fairness downstream from the courtroom, when children who have
incurred longer custodial sentences face the challenges of seeking discretionary early release.
This aspect of youth justice has recently been subject of judicial scrutiny in R. (on the application
of K.) v Parole Board [2006] EWHC 2413 (Admin). Though this case concerned review ‘of the
papers’ of a child subject to detention extended for public protection,1 the principles deter-
mined in K. apply equally to the residual number of young persons eligible for parole under the
early release provisions of the Criminal Justice Act (CJA) 1992.2 K.’s experience is of doubly
instructive value because his eligibility for parole and his pending early release – back to less
than ideal family circumstances – posed important considerations regarding the local authority’s
responsibilities to him under the Children Act (CA) 1989 s.17, subject of judicial challenge
in R. (on the application of K.) v Manchester City Council [2006] EWHC 3164 (Admin) and
providing a further illustration of the role of that Act in meeting the needs of young persons
returning to the community from custody (see Stone, 2008). K. throws further light on the
limited extent to which a local authority is able to look to its youth offending team (YOT) in
fulfi lling its statutory obligations to children.
K.’s Eligibility for Parole
At age 13, K. had been involved in various street robberies involving knives and in one instance
he had been in possession of an imitation fi rearm. Then living with his family in a deprived area
of Manchester, he had been attracted to so-called gang-centred offending with older youths.
Parental supervision was not protective or vigilant. His father has a substantial criminal record
and had spent over 11 years in prison; an older brother had also incurred convictions attracting
custody; his mother spoke little or no English.
Stone – Legal Commentary
163
Being deemed to satisfy the relevant criterion of posing a substantial risk of serious harm, K.
was sentenced under CJA 2003 s.228 to detention extended for public protection, comprising
a custodial term of 24 months with a further 24 months extension of liability to licence.
Accordingly, he was eligible under the provisions of CJA 2003 s.247 to be considered by the
Parole Board for discretionary early release after serving one-half of his custodial term. Having
spent time on remand in custody his parole eligibility date fell around seven months following
date of sentence. He was detained at a local authority secure children’s home (LASCH). Now
aged 14, K. was notifi ed in the usual way that he could apply for parole, being informed that he
would be able to make written representations in support of his application and (erroneously)
that a members of the Parole Board would visit him to discuss his case with him. No mention
was made in the notifi cation to K. that the Board might consider his case by conducting an oral
hearing which he could attend, be legally represented, give evidence and call witnesses.
K. had clearly progressed well at the LASCH both in his educational attainment (gaining
GCSE passes at age 14) and in his attitudes generally, including victim empathy. Of the two
principal reports prepared for the Parole Board, that by the LASCH manager drew attention to
his excellent response to the opportunities afforded him but expressed concern that he would
not be able to sustain this progress on returning home. In light of his diffi cult and problematic
family and community circumstances he was considered unable ‘to resist the pressure to become
involved in gang-related activities’. Noting that K. acknowledged this diffi culty (and com-
menting that he had been known to refer to fellow gang members as ‘family’), the manager con-
cluded that his transition back into the community would succeed only if he was provided with
a structured and intensive package of support.
The second report, by a probation offi cer member of the relevant youth offending team
(YOT), recognized the problems K. would face on release but considered in light of the efforts
he had made that his risk of harm had reduced and ‘could effectively be managed in the com-
munity’. He would be seen twice weekly3 and would be assessed for a ‘close supervision scheme’.
The YOT worker had visited the home and spoken to K.’s father. Confi rming that the address
was suitable for parole purposes, she noted that K. had told her that he had a good relationship
with his family and she foresaw ‘no particular problems with him returning to his parents’.
K.’s experience of the parole process
As later emerged in his application for judicial review, K. had unsurprisingly found the process
puzzling. LASCH staff appear to have been unfamiliar with the parole system, particularly as it
affected s.228 sentences. In his witness statement to the High Court K. said that when he had
been eventually informed of his parole eligibility, staff told him (erroneously) that if he was
unsuccessful on his fi rst application he could re-apply each month thereafter.4 He was shown
the reports about him and his LASCH ‘link worker’ went through the entire dossier with him
in about an hour. He then wrote a (commendably articulate) letter (his ‘representations’) to
the Parole Board without receiving any assistance or advisory comment. He was able to express
his intentions to ‘stay away from crime by having associates also would like to go to school
to keep myself out of trouble and get farrer [sic] in life’. He did not receive any help in this
matter from his family – his father was himself in custody and his mother was prevented from
visiting through her work commitments. He had found it confusing that the LASCH manager
had reported that he was doing well but did not appear to support his application. He was given
no explanation as to why a member of the Board had not visited him.
164
Youth Justice 8(2)
The Parole Board’s decision and its aftermath
A panel of the Parole Board refused K.’s application. In their reasons for this decision the panel
acknowledged that he had fl ourished commendably during his time in the LASCH. However,
it noted a strong possibility that ‘all the excellent work he has achieved will soon be ruined
by gangland peer pressure’, given that he would be returning to ‘a family in which the male
members are pro-criminal role models and the female members appear to have limited control
over his behaviour and associates’. Stating that K. ‘is at high risk of intimidation and possible
physical harm from other gang members and is, as yet, ill-equipped to resist or fl ee that socio-
environmental pressure’, the Panel declined parole, in the anticipation that his continuing
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