Now it’s time for a Youth Justice League – 14.05.19

Kate Aubrey-Johnson on why some heroes really do wear capes

Like many of you, I cut my teeth as a barrister in the youth court and quite literally practisingmy advocacy skills on children. It cannot be right that we expect our least knowledgeable and most inexperienced barristers to represent children, who are the most vulnerable defendants in the criminal justice system, who need the most expertise and support.

England and Wales has the lowest age of criminal responsibility in Europe (alongside Switzerland). Weimprison more children than any other country in Western Europe.[1] More shocking, is that half of the children in our secure estate identify as being from a black, Asian, or minority ethnic background (despite BAME people making up about 14 % of the general population).[2]

While Scotland is raising the age of criminal responsibility to 14, our government has pushed through legislation to introduce ‘Knife Crime Prevention Orders’. These will allow children as young as 12 to be criminalised and imprisoned for breaching orders through otherwise lawful behaviour, such as associating with friends or exchanging messages on social media.

Not only are we criminalising far too many children, we know that the children who come into contact with the youth justice system are much more likely to have communication difficulties, mental health and substance misuse problems, have undergone trauma, or have complex needs. One-third of children in custody have been diagnosed with a special educational need, and around 30 per cent of children in custody with ‘persistent offending histories’ have IQs of under 70, signifying a learning disability.[3] Children (as compared with adult offenders) have much higher rates of learning disability, post-traumatic stress disorder, attention deficit hyperactivity disorder (ADHD), and other psychiatric disorders, notably conduct disorder.[4] And all too often, children in the youth justice system have been out of school for long periods through truancy or following exclusion. As a result, two-thirds of children entering custody are not in education,[5] and half of 15-17 year olds in custody have the literacy or numeracy levels expected of a 7-11 year old.[6]

But I’m guessing you know all this.

The question is –what are we doing about it?

At Just for Kids Law, we believe children deserve the best possible legal representation. Five years’ ago, we set up the Youth Justice Legal Centre to ensure youth justice is recognised as a specialism, and to provide criminal lawyers who represent and prosecute children with the specialist knowledge and expertise they need. Since then, YJLC.uk has become a centre of excellence in youth justice law and provides free and accessible expertise and guidance about children’s rights in the criminal justice system through our website, advice line and training.

In 2017, the then Lord Chief Justice stated: ‘[I]t would be difficult to conceive of an advocate being competent to act in a case involving young witnesses or defendants unless the advocate had undertaken specific training’ (R v Grant-Murray and others [2017] EWCA 1228).
Later that year, the Bar Standards Board (BSB) approved a regulatory change[7] requiring all barristers who practise in the youth court to register that they meet the BSB’s youth proceedings competences.[8]

Since then, YJLC have delivered our intensive, interactive two-day youth justice training course to nearly 100 pupils and junior barristers, and we are hoping to launch a training course in partnership with the CBA for established practitioners this autumn.

Of course, this raised standard of training and expertise is going some way to improving the status of youth justice work, but we must also see this reflected by a corresponding uplift in fees. In 2018, the MoJ asked me to chair a Working Group on Quality of Youth Advocacy, the purpose of which is to improve the standing and remuneration of youth justice work. I hope that in the coming year we will deliver on this.

On Friday this week (17 May), we are holding our third Youth Justice Summit at King’s College London, and 250 delegates (pupils, trainees, solicitors, barristers, judges, magistrates, youth offending team workers, and other professionals) will gather together, building on a shared body of knowledge and expertise. The daughter of a close colleague of mine suggested we call ourselves the Youth Justice League. I think she’s right. There is a growing community of youth justice specialists – the unsung superheroes, who also wear capes. It’s time we got the recognition we deserve.

For busy practitioners, I leave you with three things to think about:

1. Too many children are coming to court and being processed through the youth court ‘guilty plea factory’ machine, or ending up in the Crown Court without adequate protections and safeguards. Always ask yourself the question, is the prosecution is proportionate or justified?

Let me tell you about someone I will call Sarah.

Sarah was 15 years old and not in full time school. She’d been reported missing several times. While sofa-surfing, she was befriended by an older man, ‘Alvin’. She thought Alvin was her boyfriend, until he stubbed his cigarette out on her arm when she disobeyed him. 

Sarah was arrested in Margate in a house of a known drug users with over £6,000 worth of class-A drugs. Thankfully, she was represented by Just for Kids Law who spent time getting to know her and she gradually opened up enough to understand that it was in her interests for the Youth Offending Team to make use of the National Referral Mechanism, as she is a victim of child criminal exploitation / modern slavery. That referral came back with a conclusive grounds decision and the CPS dropped the case. Without that kind of expert intervention by her solicitor, she could have been serving a long custodial sentence, which would have benefited no one. 

The reality is that many of the children who come before the criminal courts shouldn’t be there at all. There is a presumption in any case involving a child that they should be diverted away from the formal criminal justice system. So if the child you are representing or prosecuting is pleading guilty – ensure the matter can’t be dealt with by way of a youth caution or youth conditional caution, or even informal diversion (sometimes called a community resolution, triage, or youth restorative disposal). Or, like in Sarah’s case, are there representations that it is not in the public interest to prosecute?

2. Get to know your client. Don’t start steering them towards a guilty plea in order to get credit, before spending time getting to know them.

‘Juwon’ was 16 years old when he was arrested after being found asleep in a flat that had been broken into. He was charged with burglary. He was polite, answered questions when asked, and agreed with the police statements. On this basis, he was advised to plead guilty. 

The court heard he was in school (although his attendance had been erratic in recent weeks), and hoped to become a plumber. He was apologetic and remorseful. As he was automatically eligible for a referral order, the hearing lasted a few minutes.

In the weeks that followed, the Youth Offending Team (YOT) discovered Juwon was homeless. He had lived with his uncle and aunt; but shortly before the burglary allegation Juwon’s uncle had died unexpectedly. Juwon was very close to his uncle and badly affected by his death. On the night of his arrest, Juwon had been drinking heavily and has no memory of how he came to be in the flat. His aunt was understandably upset at Juwon’s behaviour and lack of respect. She cut all ties with him, leaving his belongings in black bags outside her home and refusing to come to the police station or court. 

Juwon did not volunteer any of this information. A barrister with youth justice expertise would have known the importance of finding out background information and it is highly likely the CPS  would have reviewed their decision to prosecute. Regrettably, Juwon now has a criminal record which will make it difficult for him to achieve his career ambitions. 

3. Children from black, Asian and minority ethnic backgrounds, children with special educational needs, and looked after children are disproportionately overrepresented in the criminal justice system.

‘Nathaniel’ was at University studying Classics when, hoping to keep his student debt under control, he went to a music festival to sell drugs. He was arrested as part of a police operation. He received a three-year custodial sentence. As part of the same police operation, his former school friend ‘Max’ was arrested and charged. Max was sentenced by the same judge and received a suspended sentence to allow him to pursue his university studies. It may not surprise you that Nathaniel is black and Max is white.

We have to stop this happening, day in day out. The evidence shows that contact with the criminal justice system has a tainting and labelling effect for children, and that those who enter the system are more likely to stay in it. Barristers have the potential to make a huge difference to children’s lives.

I’ve been asked to nominate a poem. My favourite poet is Wendy Cope (and I highly recommend reading Education for Leisure). But I’ll end with We Real Coolby Gwendolyn Brooks:

The Pool Players.
Seven at the Golden Shovel.

We real cool. We
Left school. We

Lurk late. We
Strike straight. We

Sing sin. We
Thin gin. We

Jazz June. We
Die soon.

Change is needed. Why not be part of making it happen?

Find out more about what we do at www.yjlc.uk

You can also purchase Youth Justice Law & Practiceco-authored by Kate Aubrey-Johnson, Shauneen Lambe and Jennifer Twite. CBA members have a few remaining days to purchase to claim a 20% discount (discount code LAYOUTH20) until 24 May2019.  How to order: online: www.lag.org.uk/bookshop, tel: 01235 465577, email: [email protected].


[1]The Howard League for Penal Reform.

[2]Youth Justice Statistics 2016 / 17 England and Wales, Ministry of Justice – 54 % of children and young people in the average custodial remand population are of BAME background. Children in Custody 2017–18: An analysis of 12–18-year-olds’ perceptions of their experiences in secure training centres and young offender institutions, HM Inspectorate of Prisons, Youth Justice Board, January 2019– 42% of children in STCs and over half (51%) of boys in YOIs identified as being from a black or other minority ethnic background and over half (51%) of boys in YOIs identified as being from a black or minority ethnic background.

[3]Nobody made the connection: The prevalence of neurodisability in young people who offend, Hughes, N., Williams, H., Chitsabesan, P., Davies, R., & Mounce, L., Children’s Commissioner for England, October 2012, page 9 & Youth Proceedings Advocacy Review, Institute of Criminal Policy Research, published by the Bar Standards Board and Chartered Institute of Legal Executives (CILEx), 2015, page 4

[4]Unfitness to Plead Report, Law Commission, Jan 2016, paragraph 7.39

[5]Key Characteristics of Admissions to Youth Custody: April 2014 to March 2016 England and Wales – Supplementary Analytical Paper, YJB/MoJ, Jan 2017.

[6]Review of the Youth Justice System in England and Wales by Charlie Taylor (Ministry of Justice), December 2016, at paragraph 8.

[7]Rule C64.5 and S59.6 of the BSB Handbook (4thEdition), 1 April 2019.

[8]www.barstandardsboard.org.uk/media/1821763/bsb_youth_competencies_2017_for_website.pdf

 

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