Following the first blog in our mini-series on youth justice, in which we provided a brief guide to the Rehabilitation of Offenders Act for young people, we address in this blog the issue of whether children are considered mini sex offenders or 'just kids' and what developments may be on the horizon in 2018.

Recent developments

In January 2018, the Ministry of Justice (“MoJ”) published its response to the Justice Committee’s report on disclosure of youth criminal records. In their response, the MoJ dismissed recommendations made by the Justice Committee for the “urgent need for reform without further delay” of the youth criminal records system.

The background

In October 2017, the Justice Committee published a report examining the current system for disclosure of youth criminal records in England and Wales. The report considered, amongst other things, whether the current statutory framework for disclosing records of offences committed by people when under 18 years old was appropriate and effective, and whether it “strikes the right balance between protecting employers and the public, and rehabilitating people who commit offences as children”.

The Justice Committee’s report made various recommendations/conclusions which included calling for an urgent review of the filtering regime and consideration of removing the rule preventing the filtering of multiple convictions. Further, the Justice Committee recommended introducing lists of non-filterable offences customised for particular areas of employment, together with a threshold test for disclosure based on disposal/sentence, and reducing qualifying periods for the filtering of childhood convictions and cautions.

The report also urged the Government to examine the feasibility of extending this new approach, possibly with modifications, to the disclosure of offences committed by young adults up to the age of 25.

The report concluded that “too many childhood offences are unfiltered, undermining rehabilitation and denying children the second chance to which the Justice Minster is committed. We further conclude that the filtering system is wholly inappropriate for records of childhood offending and should be radically revised as a matter of urgency.”

The Government’s response

In their response, the Government has said that it will consider the Justice Committee’s recommendations following the Supreme Court’s judgement in the case R (on the application of P and Others) v Secretary of State for the Home Department [2017] EWCA Civ 321 due to be heard in June 2018. In this case, the Government are defending the current disclosure regime.

By way of background, the Court of Appeal ruled in May 2017 that the current criminal records scheme was “disproportionate and unlawful”. As stated in their response to the Justice Committee’s report the Government believes that the current disclosure system, including rehabilitation periods and the filtering system, to be proportionate.

In relation to sexual offending and “sexting” the Government noted that “cases of “sexting” can be damaging to both the victim and the perpetrator. It can be difficult for young people to understand the implications of these activities, or to consider that once an image has been shared they have no control over its distribution”. Of course efforts to educate children and prevent harmful sexual behaviours are vitally important. However, the criminal justice system is a blunt instrument for tackling a sensitive and complex problem. In many cases, significant damage will be caused by marking children and young people (aged 10 to 17) as mini sex offenders for life using legislation that was designed to protect children from predatory adults.

The current law means that “sexting” encompasses a vast range of behaviour: consensual sharing of images between two 17 year olds who are in a safe relationship; 13 year olds experimenting with a camera; bullying (deeply unpleasant but not sexually motivated); and more serious sexual offending which demonstrates a concerning pattern of sexual behaviour that requires intervention by the relevant authorities. The Government have argued that police discretion and Outcome 21 act as a safeguard against unnecessary criminalisation but in reality Outcome 21 is relatively narrow in scope and discretion leads to inconsistency of approach when managing a vast range of behaviour that requires a more sensitive and thoughtful solution than simply stigmatising young people indefinitely.

Concerns for the future?

The Government now, more than ever, faces increasing pressure to examine and reform the current disclosure system in place in England and Wales. In their written submission to the Justice Committees’ report, Unlock - an independent charity for people with convictions submits “children and young adults who have been in trouble with the law should be given an opportunity to put their past behind them and be able to move forward positively in their lives free of the stigma of a criminal record.

Recent case law highlights some of the key challenges in practice:

In a judgement handed down on 12 February 2018, the High Court declared unlawful and quashed the decision of the University of Wolverhampton to expel one of its accredited Master of Pharmacy (“MPharm”) degree students (“HA”) because of two criminal convictions he received aged 15 which he failed to declare when he applied for the course.

HA had two convictions for assault and robbery. He had committed the offences when he was 14 and was subsequently convicted aged 15. As part of the application process for the MPharm course, HA had to complete various online forms. The course, like the profession of pharmacy is exempt from the Rehabilitation of Offenders Act because it might involve close working with children or vulnerable adults (please see our previous blog on the Rehabilitation of Offenders Act). Although HA initially failed to disclose the convictions on his application form he later notified a lecturer following an induction lecture at the start of the course.

The decision to exclude HA from the course was taken by the University’s Fitness to Practice panel (“FtPP”). The panel decided that HA had failed to meet the principles of the Student Code of Conduct for Pharmacy Students and that his fitness to practice was impaired, such that he would be permanently excluded from the course and not allowed to apply for any other professional programme at the University.

In his judgement, Mr Justice Julian Knowles held that the decision to exclude HA was unlawful and noted that there were “a number of flaws in the FtPP’s reasons which means that its determination that HA should be excluded from the course cannot stand.” In particular, the FtPP’s failure to consider the “quite considerable” mitigation was a “fundamental failure”. His Lordship noted that there were a number of mitigating factors which the panel should have positively considered, firstly the fact that HA was only 14 at the time of the offences and 15 at the time of conviction. Secondly, following his induction lecture, HA immediately told his lecturer of his offences. Thirdly, there was the expression of remorse for his actions by HA both at the time of his convictions, in writing in advance of the hearing and at the hearing. Fourthly, references from his sixth form college stated that throughout his A–level courses, HA has been a “courteous and well behaved” student.

In the judgement, his Lordship acknowledged that because HA was required to disclose his spent convictions, there was an interference with his right to private life under Article 8(1), however that interference was for one of the specified purposes in Article 8(2), it was in accordance with law, and it was necessary in a democratic society.

Sexting judicial review

In another case in November 2017, Mr Justice Kerr granted a claimant, now 16 and his family permission to bring a judicial review challenging Greater Manchester Police’s retention of a crime record relating to an incident of “sexting”.

The claimant, aged 14, used the social media platform Snapchat to send a naked photograph of himself to another pupil at his school. This recipient shared the photograph with others before the incident eventually came to the police’s attention.

Greater Manchester Police recorded the matter as a crime (the distribution or showing of indecent photographs contrary to s1(1)(b) Protection of Children Act 1978) but took no further action. The Claimant submitted that the ongoing retention of the crime report, or of details within the crime report which identify him, amounted to a breach of his Article 8 rights. Counsel for the claimant submitted that the potential impact on the claimant was immense and likely to have a number of consequences for him.

His Lordship agreed and noted that the claimant’s case was “arguable” and granted him permission to bring a judicial review. A hearing date has just not yet been fixed.

Looking forward

Both of these cases highlight the current problems with the retention and disclosure of youth criminal records. Amongst other things, there is a undoubtedly a lack of clarity for young people about what and when they have to disclose criminal records as highlighted in the Justice Committee’s report on the disclosure of youth criminal records. Despite the Government’s recent response to the Justice Committee’s report, these cases mark a step in the right direction in allowing children and young adults to challenge the way in which their criminal record information is recorded.

The problem remains that, at a time of increasing cuts and limited police resources, young people who enter the criminal justice system encounter serious and debilitating short-term problems in terms of schooling and significant long term consequences in terms of criminal records, particularly for offences related to sexting which will never be filtered and will cause serious difficulties when applying for higher education and employment in certain fields.

The NPCC have released figures which show that since 2014, there has been a 131% increase in police recorded instances of sexting offences:

  • 2014/15: 2700 sexting offences
  • 2015/16: 4681 sexting offences – an increase of 73 per cent on previous year
  • 2016/17: 6238 sexting offences – an increase of 33 per cent on previous year
  • Between 2014/15 and 2016/17 there has been a 131 per cent rise.

This is no small problem and the Government has yet to provide a response that will adequately deal with those cases that fall outside the scope of Outcome 21. Just for Kids Law has launched a campaign "Sense About Sexting” which we hope will trigger an appropriate response from the relevant authorities but until then the current regime poses serious difficulties for many young people who are convicted or cautioned for sexting related offences.