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Child and Youth Justice
Brenda Campbell and Shauneen Lambe examine the report on the Youth Justice System recently released by the Centre for Social Justice.
In February 2010, the Centre for Social Justice (CSJ), a think-tank founded by Iain Duncan Smith, launched a review of the Youth Justice System. January 2012 saw the release of the CSJ’s report on the Youth Justice System, “Rules of Engagement”. The thorough and well researched report is the result of 2 years work for the centre, gathering evidence country wide and from a diverse range of professionals.
Recommendations
The report recommends sweeping changes to a system that “continues to function as a backstop: sweeping up the problem cases that other services have failed, or been unable, to address” (Rules of Engagement, p.11). Long term recommendations include removing children from the adversarial court setting and raising the age of criminal responsibility from 10 years old to 12 years old. Immediate recommendations include raising the custody threshold and the minimum period in custody to six months to prevent the imposition of very short and unproductive custodial sentences, and introducing mandatory specialist youth training for all defence lawyers and Crown Court judges appearing in youth proceedings.
Role of Youth Courts
Children and young people in the youth justice system often have multiple and complex needs. They are inherently vulnerable by virtue of their age. In recognition of this the law states that cases involving youths should wherever possible be heard in a youth court. Exceptions are where a young person has committed a ‘grave crime’or is being tried alongside an adult, in which case they are usually heard in the Crown Court or adult magistrates’ court. Youth courts are supposed to have a less formal layout and atmosphere than that of adult magistrates’ courts; the environment is intended to make the child or young person feel comfortable, rather than intimidated or threatened. In addition, young defendants and their families are actively encouraged to participate in courtroom proceedings. Practice guidance to the Crown Court emphasises that these courts should adapt themselves to facilitate the engagement of young defendants. This includes arranging courtrooms so that all participants are on the same level, sitting defendants next to their parents/guardians and ensuring that the hearing is conducted in language that the defendant can understand.
Specifically Trained Lawyers?
Given the recognition of special status, it might be assumed that lawyers representing children in criminal proceedings are specifically trained to represent this client group – not so. Prosecutors, on behalf of the Crown, in the youth court are specialist youth prosecutors who receive youth specific training, although there is no similar requirement on those appearing to prosecute in the Crown Court. Moreover, for those defending children, whether in the youth court or Crown Court, there is no requirement that they have any specialist training in representing children. In family proceedings solicitors representing children are required to have youth specific accreditation; however those representing children in youth courts have no specific requirement.
District judges and youth magistrates are expected to complete training on how to engage with young defendants in court. Youth court magistrates are required to complete at least six hours training before they can be authorised as youth magistrates. District judges are expected to attend specialist youth training before they may practise in the youth court. Both training courses include only minimal content on child welfare, child development, mental health problems or speech, language and learning needs.
Though it is generally recognised that sentencers dealing with young offenders should have youth specific training, the majority of Crown Court judges have not. Furthermore, because they deal with comparatively few youth cases, they have little experience of dealing with young people in court and may not see the value in undertaking youth specific training. In 2003 the Home Office proposed that Crown Court judges should be specialised (‘ticketed’) to preside over youth cases through selection and training. Yet they remain untrained and ‘unticketed’. Crown Courts continue to be highly intimidating places for children and young people (as a result of the large presence of adults, including spectators in the public gallery and a jury of 12 for trials). This is compounded by the lack of youth specialist trained judges and lawyers. Evidence indicates that Crown Court judges sentence far more severely than magistrates in like for like cases; they “imposed more than seven times as much custody in comparable cases” (Rules of Engagement, para 3.2.3.1).
The problem arises when the youth court is seen as a practice ground for newly qualified lawyers, who though may be very good and committed, may lack awareness of the distinct vulnerabilities and needs of children who offend.
The youth justice system is a legal minefield and very different from the adult system. Defence practitioners who lack youth specific expertise may be unaware of the complexity of the issues involved in providing the highest quality representation to young people. They may be unfamiliar with youth specific community sentences and with other support services that could be available for the young person; unable to identify issues concerning the mental capacity of child defendants; or unfamiliar with relevant legislation or specific case law. As a consequence, they may be unable to represent the child or young person most effectively in court.
Youth Justice Training
In CSJ polling 65 per cent of people said that defence practitioners should have specialist youth justice training before being allowed to appear in youth proceedings. Conscious of this, since 2009, Garden Court Chambers has incorporated youth specific training, delivered by Just for Kids Law, into our annual training programme and it now forms a mandatory part of our pupillage training. The training, like other specialist youth justice training, provides an in-depth, one day course, delivered in part by former defendants, which gives practitioners insight into their youth court experiences, helps to develop a real understanding of young peoples’ distinct capacities, and improves practitioners’ ability to communicate with young people and thus represent them more effectively. It is, in our experience, as invaluable to pupils about to get ‘on their feet’ as it is to experienced practitioners. Indeed, when Just for Kids Law carried out comprehensive youth justice training to a number of other legal practitioners in other cities, feedback from the training was overwhelmingly positive: 81% of those who attended nationwide trainings as qualified lawyers said some of the content of the course was new to them, and 90% said that they would change their practice as a result of the training. A third said they would increase their contact with Youth Offending Teams and support services, and almost two thirds would involve psychiatrists and psychologists more.
Recognising the complex vulnerabilities of many of the young defendants who appear before our criminal courts, the benefits of youth justice training go beyond a greater knowledge of the law. The engagement of young defendants in their cases, together with their parents or guardians, is a fundamental right. Young people who are not properly engaged in the court process are less likely to respond to efforts to prevent subsequent reoffending. Between 60 and 90 per cent of youth justice defendants have communication difficulties which often go unrecognised; 25 to 81 per cent have mental health problems; and 31 per cent have literacy levels akin to those expected of a seven year-old (HM Inspectorate of Prisons and Ofsted, 2002, as cited in Jacobson J and Talbot J, 2009, op. cit., p37). Accordingly, those trained in the effective representation of young defendants are encouraged to use plain language and are also aware of the language used by young people – ensuring that the language used and questions asked are at a level that the young person can understand. Training helps to identify and understand any needs (such as communication and learning difficulties, and mental health problems) that are likely to affect the young defendant’s behaviour and understanding of what is said in court.
It is often hard to appreciate just how little understanding young people with communication and learning difficulties have, as they try to mask their disabilities by agreeing. Those trained in representing young defendants would, at least, be alert to such potential difficulties. Without this knowledge, young defendants may not understand the proceedings, may not be able to participate effectively and may be unclear about what is going to happen to them.
CSJ Recommendations
Young people with communication difficulties often struggle to understand the meaning of plain criminal justice language such as “guilty” or “remand”.
The CSJ report recommends that all defence lawyers appearing in youth and Crown Court proceedings should complete specialist youth training before they are allowed to practice. They suggest that this could be achieved by means of a requirement that all new defence practitioners complete a minimum of 10 hours continuing professional development (CPD) accredited youth training. For experienced defence practitioners this would be reduced to a minimum of 5.5 hours training. This should be refreshed annually by ring-fencing 2 hours CPD points for accredited training in this field (Rules of Engagement, para 3.6.1).
While busy practitioners might inwardly groan at yet more requirements being demanded of them, we suggest that the recommendations of the CSJ are well founded and ought to be adopted. It is of concern that newly qualified practitioners who regularly ‘cut their teeth’ in the youth courts, do so without any requirement for training or expertise in the representation of young people. Newly qualified barristers are required to undertake obtain 42 CPD points within the first 3 years of practice. Within this is a mandatory requirement to attend a course in Forensic Accounting. A similar requirement could be incorporated to ensure 10 hours of youth accredited training – delivered through the Inns of Court. Similarly, experienced practitioners are required to complete 12 hours of CPD accredited training annually.
For criminal defence practitioners, it would neither be complicated nor costly to demonstrate that amongst these 12 hours are 2 hours devoted to the meaningful representation of young people. We urge the Bar Standards Board and the Solicitors’ Regulation Authority to consider and incorporate the changes urged by the CSJ. In the interim, we encourage chambers and individual practitioners to seek out courses which will equip them with the necessary expertise to provide high level representation to vulnerable young defendants.
For more information, see www.justforkidslaw.org
Brenda Campbell, Garden Court Chambers and Shauneen Lambe Just for Kids Law
Recommendations
The report recommends sweeping changes to a system that “continues to function as a backstop: sweeping up the problem cases that other services have failed, or been unable, to address” (Rules of Engagement, p.11). Long term recommendations include removing children from the adversarial court setting and raising the age of criminal responsibility from 10 years old to 12 years old. Immediate recommendations include raising the custody threshold and the minimum period in custody to six months to prevent the imposition of very short and unproductive custodial sentences, and introducing mandatory specialist youth training for all defence lawyers and Crown Court judges appearing in youth proceedings.
Role of Youth Courts
Children and young people in the youth justice system often have multiple and complex needs. They are inherently vulnerable by virtue of their age. In recognition of this the law states that cases involving youths should wherever possible be heard in a youth court. Exceptions are where a young person has committed a ‘grave crime’or is being tried alongside an adult, in which case they are usually heard in the Crown Court or adult magistrates’ court. Youth courts are supposed to have a less formal layout and atmosphere than that of adult magistrates’ courts; the environment is intended to make the child or young person feel comfortable, rather than intimidated or threatened. In addition, young defendants and their families are actively encouraged to participate in courtroom proceedings. Practice guidance to the Crown Court emphasises that these courts should adapt themselves to facilitate the engagement of young defendants. This includes arranging courtrooms so that all participants are on the same level, sitting defendants next to their parents/guardians and ensuring that the hearing is conducted in language that the defendant can understand.
Specifically Trained Lawyers?
Given the recognition of special status, it might be assumed that lawyers representing children in criminal proceedings are specifically trained to represent this client group – not so. Prosecutors, on behalf of the Crown, in the youth court are specialist youth prosecutors who receive youth specific training, although there is no similar requirement on those appearing to prosecute in the Crown Court. Moreover, for those defending children, whether in the youth court or Crown Court, there is no requirement that they have any specialist training in representing children. In family proceedings solicitors representing children are required to have youth specific accreditation; however those representing children in youth courts have no specific requirement.
District judges and youth magistrates are expected to complete training on how to engage with young defendants in court. Youth court magistrates are required to complete at least six hours training before they can be authorised as youth magistrates. District judges are expected to attend specialist youth training before they may practise in the youth court. Both training courses include only minimal content on child welfare, child development, mental health problems or speech, language and learning needs.
Though it is generally recognised that sentencers dealing with young offenders should have youth specific training, the majority of Crown Court judges have not. Furthermore, because they deal with comparatively few youth cases, they have little experience of dealing with young people in court and may not see the value in undertaking youth specific training. In 2003 the Home Office proposed that Crown Court judges should be specialised (‘ticketed’) to preside over youth cases through selection and training. Yet they remain untrained and ‘unticketed’. Crown Courts continue to be highly intimidating places for children and young people (as a result of the large presence of adults, including spectators in the public gallery and a jury of 12 for trials). This is compounded by the lack of youth specialist trained judges and lawyers. Evidence indicates that Crown Court judges sentence far more severely than magistrates in like for like cases; they “imposed more than seven times as much custody in comparable cases” (Rules of Engagement, para 3.2.3.1).
The problem arises when the youth court is seen as a practice ground for newly qualified lawyers, who though may be very good and committed, may lack awareness of the distinct vulnerabilities and needs of children who offend.
The youth justice system is a legal minefield and very different from the adult system. Defence practitioners who lack youth specific expertise may be unaware of the complexity of the issues involved in providing the highest quality representation to young people. They may be unfamiliar with youth specific community sentences and with other support services that could be available for the young person; unable to identify issues concerning the mental capacity of child defendants; or unfamiliar with relevant legislation or specific case law. As a consequence, they may be unable to represent the child or young person most effectively in court.
Youth Justice Training
In CSJ polling 65 per cent of people said that defence practitioners should have specialist youth justice training before being allowed to appear in youth proceedings. Conscious of this, since 2009, Garden Court Chambers has incorporated youth specific training, delivered by Just for Kids Law, into our annual training programme and it now forms a mandatory part of our pupillage training. The training, like other specialist youth justice training, provides an in-depth, one day course, delivered in part by former defendants, which gives practitioners insight into their youth court experiences, helps to develop a real understanding of young peoples’ distinct capacities, and improves practitioners’ ability to communicate with young people and thus represent them more effectively. It is, in our experience, as invaluable to pupils about to get ‘on their feet’ as it is to experienced practitioners. Indeed, when Just for Kids Law carried out comprehensive youth justice training to a number of other legal practitioners in other cities, feedback from the training was overwhelmingly positive: 81% of those who attended nationwide trainings as qualified lawyers said some of the content of the course was new to them, and 90% said that they would change their practice as a result of the training. A third said they would increase their contact with Youth Offending Teams and support services, and almost two thirds would involve psychiatrists and psychologists more.
Recognising the complex vulnerabilities of many of the young defendants who appear before our criminal courts, the benefits of youth justice training go beyond a greater knowledge of the law. The engagement of young defendants in their cases, together with their parents or guardians, is a fundamental right. Young people who are not properly engaged in the court process are less likely to respond to efforts to prevent subsequent reoffending. Between 60 and 90 per cent of youth justice defendants have communication difficulties which often go unrecognised; 25 to 81 per cent have mental health problems; and 31 per cent have literacy levels akin to those expected of a seven year-old (HM Inspectorate of Prisons and Ofsted, 2002, as cited in Jacobson J and Talbot J, 2009, op. cit., p37). Accordingly, those trained in the effective representation of young defendants are encouraged to use plain language and are also aware of the language used by young people – ensuring that the language used and questions asked are at a level that the young person can understand. Training helps to identify and understand any needs (such as communication and learning difficulties, and mental health problems) that are likely to affect the young defendant’s behaviour and understanding of what is said in court.
It is often hard to appreciate just how little understanding young people with communication and learning difficulties have, as they try to mask their disabilities by agreeing. Those trained in representing young defendants would, at least, be alert to such potential difficulties. Without this knowledge, young defendants may not understand the proceedings, may not be able to participate effectively and may be unclear about what is going to happen to them.
CSJ Recommendations
Young people with communication difficulties often struggle to understand the meaning of plain criminal justice language such as “guilty” or “remand”.
The CSJ report recommends that all defence lawyers appearing in youth and Crown Court proceedings should complete specialist youth training before they are allowed to practice. They suggest that this could be achieved by means of a requirement that all new defence practitioners complete a minimum of 10 hours continuing professional development (CPD) accredited youth training. For experienced defence practitioners this would be reduced to a minimum of 5.5 hours training. This should be refreshed annually by ring-fencing 2 hours CPD points for accredited training in this field (Rules of Engagement, para 3.6.1).
While busy practitioners might inwardly groan at yet more requirements being demanded of them, we suggest that the recommendations of the CSJ are well founded and ought to be adopted. It is of concern that newly qualified practitioners who regularly ‘cut their teeth’ in the youth courts, do so without any requirement for training or expertise in the representation of young people. Newly qualified barristers are required to undertake obtain 42 CPD points within the first 3 years of practice. Within this is a mandatory requirement to attend a course in Forensic Accounting. A similar requirement could be incorporated to ensure 10 hours of youth accredited training – delivered through the Inns of Court. Similarly, experienced practitioners are required to complete 12 hours of CPD accredited training annually.
For criminal defence practitioners, it would neither be complicated nor costly to demonstrate that amongst these 12 hours are 2 hours devoted to the meaningful representation of young people. We urge the Bar Standards Board and the Solicitors’ Regulation Authority to consider and incorporate the changes urged by the CSJ. In the interim, we encourage chambers and individual practitioners to seek out courses which will equip them with the necessary expertise to provide high level representation to vulnerable young defendants.
For more information, see www.justforkidslaw.org
Brenda Campbell, Garden Court Chambers and Shauneen Lambe Just for Kids Law
Child and Youth Justice
Brenda Campbell and Shauneen Lambe examine the report on the Youth Justice System recently released by the Centre for Social Justice.
In February 2010, the Centre for Social Justice (CSJ), a think-tank founded by Iain Duncan Smith, launched a review of the Youth Justice System. January 2012 saw the release of the CSJ’s report on the Youth Justice System, “Rules of Engagement”. The thorough and well researched report is the result of 2 years work for the centre, gathering evidence country wide and from a diverse range of professionals.
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