Youth must be served

‘The youth courts have the same issues as the magistrates’ courts, but magnified,’ says criminal defence barrister Kirsty Day. ‘We’re not talking Wild West, but Wild Wild West.’

While numbers of child prosecutions have fallen by three quarters over the past decade, a 2020 review by the National Association for Youth Justice (NAYJ) found youth courts – a type of magistrates’ court for children aged 10-17 – were overburdened, with defendants facing huge delays predating the pandemic. Delays are particularly serious for youths, who are likely to face trial and sentencing as adults once they turn 18.

Around the same time as the NAYJ report, the Commons Justice Select Committee highlighted a host of problems with the youth justice system, including inflexible sentencing options and racial disproportionality.

Compounding these systemic issues is a lackadaisical approach to correct legal process in the youth courts, some lawyers allege. ‘The public would be shocked if they could see what goes on,’ Day observes. She says she went into the job thinking it would be all about law. Instead, she tells the Gazette, ‘a lot of the time I’m fighting to get people to follow procedure’.

'Some people call them kangaroo courts and to some extent they are. I’ve no doubt there are miscarriages of justice every day of the week'

Gerwyn Wise, Garden Court Chambers

One case, a child robbery, sticks in her mind. ‘The complainant had gone home to dad, who went looking for someone who matched the description – a slim, black boy. The father found my client, called the police, showed his son my client sitting in the police car and asked him, “Is that the kid?”’

There is well-established case law on the admissibility of informal identification evidence. But when Day began her arguments against the admission of the ID evidence during her client’s trial, the judge quickly closed her down. Her client was convicted and given a custodial sentence. He declined her offer to appeal.

‘Legal arguments often aren’t listened to in the magistrates’ courts, but it’s even worse in the youth courts,’ Day continues. ‘Things are so rushed.’ She says she often finds herself second-guessing whether to raise objections. ‘You’re made to feel as if you’re getting in the way and that it’s not doing your client any favours. I don’t want to say it’s a blasé attitude, it’s just that things need to be done so quickly. Justice is sacrificed for efficiency.’

Day also works in the family courts which, she says, have a completely different attitude to children. ‘In the family courts, we spend half an hour going over the ground rules and questions so that the child understands what’s going on. I suggested we do that in a youth case for a relatively minor offence and the judge said to my client: “You understand everything don’t you?”’ Perhaps unsurprisingly, given the leading nature of the question, the young defendant said she did.

The youth courts’ sometimes sloppy approach to procedures is particularly concerning, Day says, given the seriousness of crimes tried there, including rape and GBH. Defendants can receive sentences of up to two years’ detention.

She recalls a case involving a stabbing of another child with a machete. ‘I got the case four days before the hearing and remember thinking there wasn’t enough time to prepare properly.’ Worse was to come.

The victim’s mother was sitting next to him, which is allowed in the youth courts. ‘During the complainant’s evidence, the mother pitched in to answer a question,’ Day says. ‘She reminded him about a detail.’

The bench allowed proceedings to continue. ‘And she did it again. That would never have been allowed in the Crown court.’ Again, her client declined to appeal. Very few of her clients do. ‘They feel the whole process has been unfair, a shambles, and they disengage,’ Day explains.

Gerwyn Wise of Garden Court Chambers admits to similar experiences: ‘That kind of example happens quite often. It’s probably because it’s a more relaxed environment: the procedure falls to one side as if it’s a conversation.’

Limits of informality

Informality should only go so far – the rules exist to protect the defendant and a good defence advocate will ask that the mother’s comments be put aside.

‘But there are some that won’t jump in and correct,’ Wise says. Regulars at the youth court sometimes become inured to procedural breaches, he explained. By contrast, many barristers in the youth courts are juniors at the start of their careers who may not intervene for other reasons.

A 2015 report to the Bar Standards Board found concerns across the youth justice system about inexperienced, poorly paid advocates whose work was often rushed and who had insufficient knowledge and skill. A year later, the Ministry of Justice published an independent review that recommended mandatory training for all lawyers appearing in the youth court. After lobbying from the Bar Council, the BSB decided against this, instead requiring registration and a ‘declaration of competency’.

This lack of expertise means that serious errors by youth court judges, who are magistrates with no legal training, may go unnoticed. Court legal advisers are present to assist magistrates with advice on the correct procedures and the law. But procedures around this advice are regularly flouted and the advice itself is sometimes incorrect, Wise tells the Gazette.

‘Advisers are supposed to provide their advice in open court, so it can be discussed,’ Wise adds. ‘In almost every case I do, the magistrate will receive their advice in open court, then retire and call the adviser for discussion.’ Asking for clarification of the advice is legitimate, but in Wise’s experience, magistrates will often ask for further advice in private.

‘When they return, I ask what further advice has been provided and sometimes it’s wrong.’ He has seen advisers make basic mistakes about the definition of self-defence, for example, or the burden of proof in relation to a particular offence. Errors are even more common where complex areas of the law such as joint enterprise are involved.

He worries that less experienced advocates do not always insist on hearing the advice, assuming it will be correct. And frustratingly, as with Day’s experience, his clients often do not want to appeal even when their trial has plainly been unfair.

‘I recently advised on a case where the bench had said: “Although we can’t be sure, we find you guilty,”’ Wise recalls. His 17-year- old client declined his offer to appeal, even though Wise believes the conviction would very likely have been overturned.

A large proportion of Wise’s clients are ‘joint enterprise’ cases involving groups made up entirely or mainly of black teenagers. Many lawyers have raised concerns that the overwhelmingly white, middle-class, retired magistrates passing judgment on them may struggle to see them as individuals. Wise recently represented a black 16-year-old whose friend had fallen out with another boy who lived on an estate.

'I’ve seen prosecutors ask children incredibly complex questions and it’s been obvious they have no idea what’s going on, yet nobody has intervened. The vulnerable witness training seems to go out of judges’ heads when they’re dealing with defendants'

Greg Stewart, GT Stewart

Wise’s client was friends with both and made a call to the boy on the estate, telling him the other lad wanted to speak to him. The two estranged teenagers then fought, and the boy from the estate was stabbed. All those who accompanied the perpetrator to the estate were charged with joint enterprise in the stabbing, including Wise’s client.

‘I genuinely believe my client just thought they were going to sort out their differences. He did nothing to encourage or assist the stabbing. There was no evidence showing conflict between my client and the boy who was stabbed, and no messages showing a conspiracy.’ All were convicted of GBH.

Wise’s client chose not to appeal. ‘For me, he illustrates the problems of the youth court. He probably wouldn’t have been convicted in the Crown court,’ Wise says.

The youth courts, he adds, ‘are a different world. Some people call them kangaroo courts and to some extent they are. I’ve no doubt there are miscarriages of justice every day of the week’.

Vulnerable defendants

Any likelihood of injustice may be further increased by the vulnerability of many juvenile defendants, with 2018 research finding 73% of those at one court had communication difficulties. Despite this, defence lawyers tell the Gazette that judges often refuse their clients intermediaries to help them understand the trial process.

In May 2020, District Judge Karen Hammond refused an intermediary to a 15-year-old with learning difficulties who had not attended school for two years. She did so despite a psychologist report putting the boy, dubbed TI, in the bottom two percentiles of the population for cognitive ability and memory, and an intermediary assessment that found he had difficulty understanding ‘anything communicated by the spoken word’ and in explaining events in sequence.

Hammond cited several reasons for her refusal, including a previous authority that she said indicated the bar for use of an intermediary should be high. She also argued that the fact the defendant had given evidence in a previous trial (and been convicted, without appeal) without the use of an intermediary indicated he had no need for one in this case.

Assisted by charity Just for Kids Law, TI applied for and won a judicial review of the decision. The High Court found that ‘where the evidence demonstrates that the defendant lacks the capacity to participate unaided in the trial process, it is incumbent on the judge to explain how the court will enable the defendant effectively to participate in the proceedings despite that evidence. The district judge did not do so’.

Jennifer Twite, head of strategic litigation at Just for Kids Law, says her team was prepared to ‘push really hard’ for intermediaries when needed, ‘but not everyone is in a position to do that. There are risks involved’.

And despite the TI case, other lawyers say little has changed. Caroline Liggins, head of the youth team at Hodge Jones & Allen and chair of the Youth Practitioners Association, is currently battling to obtain an intermediary for a very young client with obvious learning difficulties accused of serious sex offences.

Different experience

‘The judge said: “We know what we are doing, Miss Liggins, we can explain to him.”’ She is fighting to have the case sent to the Crown court. ‘The judge has questioned whether we need to look at evidence that is vital both ways,’ she tells the Gazette. ‘This happens a lot. In the Crown court we would not get those kinds of questions.’ The youth court judge had also suggested a guilty plea would result in a referral order, apparently failing to realise her client would face registration as a sex offender.

However, the Crown court’s treatment of children is also less than perfect, says Liggins’ fellow YPA member Greg Stewart, founder of national criminal defence firm GT Stewart.

In 1999, the European Court of Human Rights criticised the trial of the 10-year-old killers of James Bulger. The government responded with reforms making courts more child-friendly, including seating arrangements on the same level. Formalities such as wigs and gowns were dispensed with and courts asked to use language tailored to the defendant’s understanding.

Despite this the Crown court still usually requires children to appear in the dock, behind a screen and separated from their legal team, says Stewart. ‘It incenses me how resistant the judiciary and bar are to modifying the courtroom to allow young people to participate,’ he says.

Separation from the process

The result is separation from the process for the juvenile defendant, who is only able to ask their lawyer questions over lunch. And this is in a context in which many juveniles are ‘woefully unprepared’, Stewart says. ‘I see a lot of young defendants going into court who have never been cross-examined by their lawyer and they are torn to pieces.’ Rules on the management of vulnerable witnesses are not applied to the accused, who may have far more at stake, he points out.

‘I’ve seen prosecutors ask children incredibly complex questions and it’s been obvious they have no idea what’s going on, yet nobody has intervened. The vulnerable witness training seems to go out of judges’ heads when they’re dealing with defendants.’

Juvenile defendants may be able to avoid a conviction if they make an admission in the police station that results in a youth caution or a referral to a youth offending panel. However, many children will not admit guilt, even when it is clearly in their best interests to do so. Many also turn down legal representation.

‘Sometimes we get calls from families saying: “A child has been arrested – can you contact the police?” and the police will say: “He hasn’t asked for a lawyer, we’ve got an appropriate adult who is dealing with it.”’

Anecdotally, there is also evidence defendants are right to be wary of offers at the police station. The Gazette has spoken to a defence lawyer whose client was persuaded into an admission by a police promise of a youth caution, which the officer retracted once a statement had been made. The lawyer successfully argued this was an abuse of process, but she fears such practices may be continuing unchallenged elsewhere.

The result, Stewart thinks, is that too many children are charged when a caution would have been the most appropriate result. Only police officers can administer cautions, so once the case has been charged and moved to the Crown Prosecution Service for prosecution, obtaining one becomes much more difficult.

Just for Kids Law recently represented a 12-year-old charged with possession of an offensive weapon after bringing scissors to school. He had threatened to cut another pupil’s hair, but a video of the incident suggested they were joking around, says Laura Cooper, a solicitor with the charity. ‘He was interviewed at school by the school police liaison officer without a solicitor present.’ He was taken to court, but after the charity fought for an adjournment, the court agreed to a youth caution.

Stewart thinks without-prejudice offers should be allowed in the criminal justice system, similar to those in civil litigation.

‘There’s no consistency,’ he says. ‘A client will admit something and be considered suitable for diversion by one police officer, but another may then say “no”, so you’re advising blindly. There should be a way to make without-prejudice admissions for the purpose of diversion.’

Expedient pleas

If the admission is not accepted, the client may then go on to put the prosecution to proof in court. Some lawyers may be uncomfortable with this.

‘It’s a court of justice, not a court of truth,’ says Stewart. ‘I know many people who have pleaded guilty for reasons of expediency. As soon as they brought in a third credit for guilty pleas, the system stopped being about the truth, as that’s an incentive to plead guilty even if you didn’t do it.’

For Kingsley Napley partner Sandra Paul, treating 10-year-olds as having the same level of criminal culpability as mature adults is fundamentally wrong.

‘The law recognises that 13-year-olds are too immature to consent to sex, but the same law holds them fully responsible for criminal acts. That’s an inconsistency,’ she says.

In her view all children under 14 should be treated using a ‘welfare model’, with requirements for admissions of guilt dispensed with. ‘The system should be weighted towards prevention rather than punishment. I’ve sat in a police station with a 10-year-old and would be very happy not to do it again,’ she says, recalling that she asked herself if she should hold his hand. ‘There has to be a better way.’

Melanie Newman is a freelance journalist