The report, which can best be found via www.ncb.org.uk, was generously funded by the Michael Sieff Foundation, with a secretariat and expert researcher and advisers facilitated by the National Children’s Bureau. The panel, from both Houses, consisted of two Conservatives, two Labour, two Liberal Democrats, and the Cross-Bench Peers Baroness Stern and Baroness Lane-Fox. The conclusions were unanimous, and party politics formed no part of the discussions. The panel heard oral evidence over four sessions, and received extensive written material following a widely published call for evidence. I enjoyed the privilege of chairing the panel. I and all my colleagues are delighted that our report has received a wide welcome, with no significant dissent.
Aim of inquiry
What was our purpose? It was to examine Youth Court proceedings, to ascertain whether any significant changes are needed, and to make representations from our conclusions. Having made what we and others believe to be major recommendations, we have now moved to the next stage – to persuade the present Government to adopt our conclusions, and to urge the political parties to include in their manifestoes for the 2015 General Election a commitment to review and reform the system of youth justice. We believe that our suggestions chime with the principles of all Parties.
The panel was shocked by some of the evidence we encountered. In one case witnessed by our rapporteur, a 15 year old, a self-harmer whose aunt could no longer cope, was prosecuted by the CPS for causing alarm and distress to the police officer who was called to the home: the alarm and distress apparently was the sight of the child attempting to harm himself. No other intervention had been available, and when pressed by the Bench the prosecutor asserted confidently that prosecution was the suitable course. The notion that this was the best outcome available was, to say the least, surprising. Plainly what the boy needed was full review of his case by services outside the criminal justice system, and suitable triage.
Other evidence concerned appearances by children before the Crown Court: despite every effort by the court and counsel to make the case comprehensible to the child defendants, they understood almost nothing and described the daze of the proceedings going on around them. Whether in the Crown Court or Youth Court, in numerous instances children with multiple mental health problems have found themselves before criminal courts rather than in child and adolescent mental health services (CAMHS). One cause of this is that the level of clearly necessary information sharing was often thwarted by a lack of imagination among service providers, and by defensive but unjustified references to the Data Protection Act. Sometimes court seems the least difficult outcome for the professionals involved, even if the worst for the child. A particularly important issue that concerned the panel is the training and competence of the judiciary and advocates in the Youth Court. Whilst some have undoubted and exemplary expertise, there can be no doubt that this is not universal. Too often deployment of advocates to defend children reflects my own first experience of any contested trial – I had never cross-examined before, had never been to a Youth Court before, and knew only the facts of the case without any information as to my client’s family circumstances etc until I arrived at court few minutes before the contested trial. My clerk had given me three particulars – the name of the instructing solicitor, the name of the defendant, and the address of the court.
Overall, the panel concluded that the youth justice system is ripe for extensive reform, which can be built on existing provision. Of course, a major issue is whether the child in question should go to court at all. When children encounter the police and the courts after committing crime, some are diverted into alternatives to prosecution. There is inconsistent application and even availability of diversion around the country. Where there is a wide range of diversion, it can be extremely effective, without the accused youngster acquiring a criminal record. Results are good. The panel concluded that the wider use of these schemes is cost effective and enables triage to take place on the merits and needs of the case. This could reduce unnecessary prosecutions, especially of children in care. Underneath our push for more diversion was a concern that welfare services often fail to address children’s needs, with the result that children fall into the criminal justice system and struggle to emerge. Vulnerable older children are often given the least consideration, especially if they are large and look like adults. A problem about such children in the court setting is that the courts usually are able to focus only on the offending, rather than the child and the wider circumstances contributing to their behaviour.
A major part of our recommendations addresses the understanding of proceedings and the language used. Many children before courts suffer neuro-developmental disorders and related problems, and there is no systematic process to identify these. This must be remedied, along with an increased recognition of the need for in-court assistance for children. This process of greater understanding would be aided significantly by improved and required training for the Bench and advocates. We recommend that nobody should be permitted to fulfil these roles unless they have been trained, and ticketed as competent to work in the Youth Court. This suggestion has received a particularly strong welcome among child safeguarding professionals. The panel concluded, in agreement with the overwhelming weight of evidence received, that the Crown Court is inappropriate for children under the age of 18. We understood well the reasons given for joint trials in the Crown Court where adults too are involved, and also the sensitivity of serious cases. We do not exclude a small number of Crown Court trials, but they must be truly exceptional. This exceptionality should be put into statute. The panel believes that even stronger case management would mean very few Crown Court cases. The default position should be Youth Court trial, with wider sentencing options as well as the power to commit for sentence where unavoidable. One possibility would be for sentencing even in the most serious cases to occur in the Youth Court, but before a senior ticketed judge. The panel was also of the view that all Magistrates’ Courts should introduce a rota system, to ensure that a senior youth magistrate or youth ticketed district judge is always available when the Youth Court is not in session.
One of our major recommendations relates to criminal records. Children who have committed less serious offences, and who have stopped offending, should be able to have their criminal record expunged once they reach 18. MPs and others receive many complaints about adults having difficulty obtaining employment because of a relatively minor pre-18 record. This is unacceptable – an important aspect of rehabilitation is the ability to enter into adult life on the same terms as others. We recommend too the piloting of a problem-solving approach in court for children, which would include judicial monitoring and continuity in cases, and powers to ensure that children’s underlying needs were met. Experience of judges in the whole of Great Britain with Drug Treatment and Testing Orders provides enthusiastic judicial support for this approach.
In producing our report, we were very conscious of the rights and expectations of victims, who often are other children. We advocate building on the existing referral order to place greater emphasis on the involvement of victims as well as the participation of families and wider support services, to address the harm of the offence as well as its underlying causes. To give effect to this, we suggest that there should be piloted the ‘problem-solving conference’ for under 16s coming to court. This is merely an outline of our report. We believe our proposals to be realistic and beneficial, and requiring commitment but little legislation. We hope that we can count on the support of the legal profession.