Youth courts: are we still failing our most vulnerable?

Have the 2013 reforms improved the youth justice experience at all or were they simply good intentions, poorly executed? A walkthrough of the key issues – and ideas for change – by Tori Adams and Kirsty Day

The youth court system has always been a complex area of the criminal justice system, with a vast amount of complicated guidance. The Youth Court Bench Book (last updated in 2017) and the Overarching Principles – Sentencing Children and Young People (2017), for example, are essential reading for anyone wishing to practise in the youth courts. They provide the guiding principles as to how courts should deal with young people who enter the criminal justice system, of which there are a worrying number.

The 2013 reforms

The guidance came into existence following The House of Commons Justice Committee’s report Youth Justice in 2013. The report prompted a seismic shift in the approach of the justice system towards children and young people; turning from retribution and deterrence to restorative justice and prevention of unnecessary criminalisation. The youth court system subsequently underwent a major transformation. However, it is questionable whether this has been enough. Here, we highlight some of our experiences and analyse whether these reforms adequately deal with the sensitive and crucial area of youth justice or whether they are simply good intentions with poor execution. Unfortunately, experience suggests that despite some improvement, it may be the latter.

First impressions: courtroom conditions

I remember very clearly being instructed to represent a 17-year-old at his sentencing hearing. He had pleaded guilty to a number of counts of a fairly serious, non-violent offence. I knew very little about him, his home life or his background. All I knew was that he was at risk of custody and it was my job to try and ensure that this did not happen.

On the morning of the hearing, I turned up at court. It was, comparatively, a fairly nice magistrates’ court building, pleasant court staff and plenty of natural light. I looked around for the youth court. I couldn’t see it. I found a sign that said it was on the ‘ground’ level, so I looked for some stairs. Again, I couldn’t see any. On further enquiry, a security guard motioned to some dark, gloomy stairs which looked like stairs to the cells. I began my descent.

Things did not improve. I arrived in a small, damp, smelly basement crowded with chairs. Security told me there was a list of more than 20 cases. The walls were crumbling and the room was filling up. My client arrived on crutches, explaining that he had arthritis and could not continue with his job. He was a looked-after child who had had a difficult upbringing. A vulnerable person, who had been involved with the ‘wrong crowd’, was now sitting in a confined, crowded space among incredibly disruptive people. His biggest fear was that he might be sent to prison. It was clear that he was terrified.

The Youth Court Bench Book outlines that the layout of a youth court should be less formal than an adult court, that children and young people should be able to sit at the same level as everyone else and that their parents can sit next to them. Many youth courts even look like boardrooms with all the tables and desks on one level in a large square.

Issues arise when a youth is then moved to an adult court, often due to listing problems. They will be seated in the dock, a good few metres below the bench, across a large and imposing courtroom behind their counsel who has to turn around to see them. The door to the dock locks automatically. Their parents aren’t sitting next to them but behind in the public gallery where they can’t see them. From the young person’s perspective they are alone, behind toughened glass, in an intimidating courtroom.

Whether in a marginalised, damp basement or in the adult court, considering that a young child is often charged with a fairly minor offence, sometimes having never committed an offence before, being placed in such circumstances in spite of updated guidance seems unjustifiable.

Custody suites are not designed for children

Often even more concerning than courtroom conditions are the conditions that children face in custody, which are often careless and sometimes worse. For example, ‘Millie’ (name changed) was arrested following a breach of a referral order. On arrival, the court had no idea why she was there; all the prosecution could discern was that Millie was suspected of having stolen money from her grandfather. However, as there were no papers available, the case would have to be adjourned. Whilst this is unsatisfactory in itself, the question of bail remained. Millie was under a local authority protection plan and her social workers attended court. They informed counsel that they would not allow Millie to return to the care of her Grandfather and that she would be placed in local authority accommodation in Coventry.

On speaking to Millie in the cells, it was clear she was incredibly vulnerable; she was dishevelled and clutching her knees to her chest. After explaining what would be happening came the painful task of explaining to Millie that she would not be going home to her grandfather. All Millie could ask was: ‘Where’s Coventry?’ She had no connections there. She was confused, frustrated and emotional. It is impossible to prepare a child for that kind of news, let alone to know how to deliver it or what kind of aftercare is needed once it has been communicated. Millie’s social workers were not allowed into the cells and there were no cell staff who had received any training for dealing with a looked-after child. The heavy responsibility fell on counsel to bridge the gap of an advocate, a social worker and a therapist.

The court’s hands were equally tied. Millie was granted bail with a condition to live and sleep as directed by the local authority. Millie was naturally distraught and asked to see counsel. However, due to the delays throughout the day, when Millie was returned to the cells, counsel was prevented from seeing her and so she had to wait.

There was never a question of Millie being remanded. She was vulnerable enough without the added terror of a custody cell, handcuffs and life changing plans being made without her knowledge or understanding. Custody suites are not designed to meet the needs of children.

In court: the battle to meet needs

Even in court, the question of whether children’s needs are taken into consideration is doubtful. Children and young people often present at court with complex emotional, behavioural and psychological needs which can be overlooked. In the Crown court, if a defendant presents with similar concerns, often, a full psychological assessment is conducted and recommendations made by medical professionals are frequently implemented by the court to ensure the defendant is able to understand the court process and participate in their case. The same cannot be said for youth courts. Sadly, it is often a difficult battle to obtain an adjournment for reports and, even when a report is completed, they are routinely ignored. This is particularly so where a district judge has dealt with the same youth on previous occasions.

Counsel are frequently informed that these issues had not been raised on the last occasion. Take, for example, ‘Mya’ in court on a charge of harassment. An intermediary report had already been obtained stating that she had memory difficulties, limited understanding of the court process and lacked confidence to say if she did not understand something. The report recommended that questions be put in a simple way with frequent breaks and for an intermediary to be present at court to assist Mya.

When the report was presented to the court, it was criticised by the judge who stated that it was exaggerated and that Mya had not had any issues in previous trials. When counsel attempted to point out that this may have been because Mya had not said anything, as explained in the report, the judge disregarded the submission and refused to adjourn the case for an intermediary to be instructed. The judge addressed Mya directly and asked, ‘We won’t have any problems, will we Mya?’ to which Mya nodded. A ground rules hearing was ordered, but that was little consolation when Mya required an intermediary. This is, at best, as a result of lack of training which must be rectified and, at worst, a complete lack of empathy.

Achieving justice: suggestions for reform

The above examples are by no means unusual. They demonstrate the unfortunate reality that youth courts fall far from the ideals envisaged at their genesis. However, in the authors’ view, the implementation of several changes to the youth courts would vastly improve the quality of decision-making.

First and foremost, better training is required for youth benches, advocates and court staff. Although the authors are aware that youth benches have additional training, this should be structured to ensure that benches sitting on cases involving children are well aware of the legal principles relating to youths, sentencing guidance and how best to approach children when speaking with them.

The same proposal would also apply for advocates. Although there are optional courses available, there is no mandatory requirement for barristers to undertake additional training in order to represent people in the youth court. A barrister is deemed competent to practise in the youth courts simply by means of a self-declaratory tick box on their practising certificate renewal. Dealing with children and young people is a skill in itself; they need to be advised in a way they understand. Mandatory training would go some way to helping young people navigate the system with the assistance of their counsel.

Prison and custody staff would also benefit from either more training or closer monitoring. It is clear that in Millie’s situation, the custody staff were out of their depth, and she was treated as an adult would-be.

Finally, the set-up of the courts themselves is a real issue. Nothing screams the system has given up on you more than hidden basements packed with young people all waiting for their brief moment in court. Further, as is the case with magistrates’ courts throughout the country, issues with listings need to be resolved in order to prevent youths sitting in formal and intimidating adult court settings.

While sentencing is the one area where the courts, more often than not, get things right, youth sentencing is complex. The sentencing guidance has a number of caveats which points solicitors and counsel in different directions. Clearer guidance, such as providing separate guidance on separate offences, would make it easier for advocates and judges to know where to look.

COVID-19

Due to the current climate, there has been far more reliance on remote hearings either by telephone or video where it is possible for them to be heard this way. The guidance on magistrates’ courts and youth courts provides that custody remands, bail applications, urgent bail variations, compassionate temporary relief applications, breaches of bail, PACE applications and cases whereby defendants are close to, or in excess of, ‘time served’ are urgent matters and should generally be undertaken remotely. Trials are not currently going ahead.

While the introduction of remote hearings may be difficult to navigate (particularly with cases involving an intermediary or interpreter), they could provide some relief for youths facing court proceedings and potentially be used in the future to alleviate some of the current pressures and concerns in youth justice. For example, a hearing over video from the comfort and safety of a quiet room would prevent the need to attend these crowded, dismal youth court buildings and may make them feel safer and more at ease. While it would not alter issues in relation to judges, training or custody, it seems likely that it could be some time before hearings return to normal and, with some time for courts to adapt to remote hearings and expand their use to potentially include contested hearings, virtual justice may just be a step in the right direction for vulnerable youths.

Not giving up on our children

Unfortunately, the youth justice system still is simply not good enough, and simple changes such as those set out above would go some way to protecting and helping vulnerable defendants and reflect the intentions and aims of youth courts, as well as assisting courts, advocates and young people in achieving justice in every youth court matter with clarity and fairness. Budgetary excuses are not good enough. Change is needed and needed now to ensure that the good intentions after 2013 are not wasted by sending the message that the system has given up on children.

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Tori Adams

Tori Adams is a barrister at 4 King’s Bench Walk with a mixed common law practice. In criminal proceedings, she acts in cases on behalf of both the defence and the Crown.

Kirsty Day

Kirsty Day is a tenant at 4 KBW, specialising in criminal and family law. She prosecutes and defends and has a keen interest in cases involving youths and vulnerable clients.