Youth Justice: the lawyer’s view

Society has gone badly wrong in the way in which it deals with those crimes committed by young people.

There are far too many children coming into contact with the criminal justice system. Children can appear in the adult Crown Court charged with grave crimes or if they are jointly charged with an adult. Under those circumstances, a child is confronted with the full rigour and formality of the court process. Following a finding by the European Court of Human Rights that the applicants Thompson and Venables had been a denied a fair hearing before the Crown Court, a Practice Direction was issued setting out adjustments to be made in the case of young defendants – addressing them by their first names, removing wigs and gowns and allowing them to sit close to their parents or carers for example. Experience shows that it is generally honoured in the breach. I have dealt with grave cases involving children as young as 13, where there were few, if any, adjustments made. Not all of the children in the cases I have seen were found guilty. But I suspect that all of them were left with lasting damage.

In the Youth Court, there is not the problem of formality but it remains a fact that there are too many going on trial. England and Wales has one of the lowest ages of criminal responsibility in the developed world. People who are too young to be married, to join the forces, to take out mortgages or to live independent lives are judged by the standards of adults in court. Legal concepts such as intention and recklessness are superimposed onto their conduct in the same way as for adults. That is despite evidence that the cognitive abilities of children are considerably less developed even in the early teenage years. The last Labour government abolished the doctrine of doli incapax by which there was a rebuttable presumption that children from 10-14 did not know the difference between right and wrong. As the law now stands, 10 year olds can be put on trial for any offence. In 1995 and again 2002, the committee of the United Nations recommended that this minimum age be raised. It is high time that invitation was taken up.

We imprison more young people than most other countries. Presently, there are in excess of 2,500 under 17s in custody and the population doubled in the last ten years. There is strong evidence that sentencing has become harsher. That has certainly been the case in the 10 years in which I have been practicing. The consequences can be devastating. In January, an inquest jury considering the death of the youngest child ever to die in custody concluded that the use of unlawful force contributed to his death. He went on to commit suicide.

Under Labour, a whole plethora of ostensibly non-criminal ‘summary powers’ such as cautions and Fixed Penalty Notices sprung up. According to work carried out by the Centre for Crime and Justice Studies, from 2001 to 2006, the use of cautions for young people accused of serious offences far outstripped the rise in the number of convictions. There was no evidence that cautions were being administered in cases that would otherwise have gone to court; these were new disposals. Cautions are not subject to the Rehabilitation of Offenders Act and so they remain with a child forever. Labour’s devotion to summary justice, where the police act as prosecutor, judge and jury has brought more children into contact with the criminal justice system in a damaging and lasting manner.

Unfortunately, for all of their tough talk, successive governments have failed to get to grips with youth crime. There is, admittedly, no easy answer. Nevertheless, it must never be forgotten that the children who come into contact with the criminal justice system are amongst the most troubled in our community. They need alternative interventions, earlier. A trial at court is too late. According to the Youth Justice Board, 31% of child defendants have a recognised mental health disorder. Studies have shown that around 88% have been excluded from school, 19% suffer from depression and 11% from post-traumatic stress disorder. If we invested more in youth services, health services and less in custodial places, perhaps the tide could be turned. I read recently that the appointment of five trainee youth workers in Ashington, Northumberland had seen an 11% reduction in the number of incidents of youth disorder, through the creation of relationships with and engagement for young people. It costs £50,800 per year to send someone to a Young Officers Institution and £164,750 to a Secure Training Centre. The post-custodial re-conviction rates for under-18 boys can be as high as 80%. I suspect that the Ashington scheme cost less and helped many more people than custody. Surely the prison budget could be better spent.

Geoff Payne is a barrister specialising in criminal defence. He practises from chambers at 25 Bedford Row, London. He is also a member of Federal Policy Committee and Vice-Chair of Federal Conference Committee.

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