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BLOG: Prosecuting in the youth court – some considerations for the defence advocate

26/05/2020

Alexandra Scott and Marie Spenwyn consider the report published in March 2020 reviewing the Crown Prosecution Service’s approach to serious youth crime.


On the 5th March 2020, Her Majesty’s Crown Prosecution Service Inspectorate (HMCPSI) published a review of how the Crown Prosecution Service (CPS) handles serious youth crime, the first review in over six years.

Given current circumstance the report has attracted less attention than it usually might.  This time last year we held a youth justice forum in chambers where practitioners gathered to consider approaches to advocacy in cases involving youth – advocacy in the general sense from the police station through to, if necessary, sentence hearings.  The brilliant Sandra Paul from Kingsley Napley spoke enthusiastically about the need for all options to be considered by legal representatives from the very outset of a young person’s involvement in the criminal justice system.  Almost a year on this report seemed to us an appropriate time to look at how youth cases are being prosecuted in the light of the review and any light the report casts on the position of defence representatives.

Some of what emerged from the report is reassuring – CPS data records that the number of youth cases being prosecuted fell by 37% between 2014-15 and 2018-9, and more youths involved in low level criminality are being dealt with through out of court disposals (OOCD). Over a similar period, however, the number of youths charged with weapons offences has increased year on year.  In 2017-18 robbery and drugs offences have started to increase, the latter in particular linked to the National Crime Agency’s recognition that children are targeted and exploited in order to move cash and drugs – the now familiar term of county lines cases reflecting this.[1]

The approach to the decision as to whether to keep cases in the Youth Court or send them for trial in the Crown Court in recent years has very much reflected overall policy concerning youths – that Youth Courts are for youths.  As a result a large proportion of these serious offences are being retained in the Youth Court, meaning that very serious offences – rape, false imprisonment, robbery, serious violence – are being tried in the Youth Court.

‘A review of how the CPS handles youth crime’

Drilling down into the detail contained within the report and the conclusions this is perhaps the most striking:

CPS prosecutors dealing with young defendants need to be familiar with, and apply, the relevant law, procedure, policy and guidance in a way that delivers justice for the perpetrator of a crime, as well as for the victim and community. Their approach also needs to reflect the immaturity and vulnerabilities of many young people involved in crime. The CPS needs to train, support and equip its prosecutors to accomplish this and has recently developed a revised training course. It requires investment but, as we have reported before, resources have been tight for the CPS and police for some time. It is apparent that compliance with policy and casework are not yet at the standard that these cases demand. Once again, there needs to be more attention paid to improving the quality of disclosure of unused material. (at paragraph 1.4).

The fact that children are being tried for very serious crimes in the Youth Court makes scrutiny of the system more important than ever, and this report looks at the extent to which the principles of the youth court are being effectively applied, and the specialist training that is given to advocates.  The focus of the report is naturally on the role of the CPS in this process and the responsibilities of the prosecution.  The findings are that some prosecutors are not receiving sufficient training, are not monitored enough and do not have the necessary understanding of policy and legislation that is specific to youths.  This is disappointing to read.  

Defence representatives appearing in the youth court in our experience are acutely aware of the need to be familiar with youth court practice and procedure.  Solicitors who regularly practise in the youth court are without exception dedicated to their clients and overall fairness in the youth justice system.  Legal advisers, Lay Magistrates and District Judges sitting in the Youth Court receive special training.  A working knowledge of the specifics – crucially the overarching principles and youth sentencing guidelines – is critical to being able to ensure that all matters are properly taken into account.  In chambers we spend up to half of the in-house advocacy timetable for first six pupils on youth court work to ensure our working pupils in second and third six are well equipped to deal with these appearances.  It is frustrating in the least to hear that the same focus is still not being consistently driven on the side of the prosecution, though not surprising.  It is trite to say that a young person’s (and often their parents or carers) first experience of the criminal justice system will impact upon overall trust and confidence within the system.  

There is not room within this review to address all of the findings of the report – however it is worth nothing the point about unused material is one that defence practitioners will no doubt raise their eyebrows to see and concur with there being real problems concerning disclosure. It is another example of the focus that is required.[2]  It would not be acceptable in the Crown Court hearing similar serious offences, why should it be any different in the Youth Court. 

Defending in the Youth Court

A review of the report also puts into sharp focus some the issues that apply to defence work involving youths.  In our view there are three core issues that need to be addressed on all sides: training, the application of youth court practice and principles to ensure the specific needs of young defendants are met, and re-numeration.   

One of the issues raised in the report is the disparity in the way Youth Court work is treated in different CPS Areas.  In some, there are dedicated units or individuals, with separate allocated resources, whereas in others the casework is rolled up with the Magistrates’ Court caseload.  In at least 32.4% of cases, the file was allocated to a CPS worker who is not a youth offending specialist. [3] The review is unequivocal – areas where the youth court work is treated as a specialism are far more effective.  This goes to two of the issues identified, namely training and application. Worryingly, the Report found that youth policy was applied fully in 37.8% of cases, partially in 35.9%, and not at all in 26.3% (5.20).  Solicitors and barristers working in the youth court have to be proactive to ensure they are equipped to carry out this work.  There are a number of youth practitioners organisations and training courses available – as ever all come though at a cost to the firm or individual barrister.  In our view training and application needs are recognised by defence representatives but the glaring problem lies, as ever, with re-numeration.  

In terms of re-numeration the perils of conflating work in the Magistrates’ Court and work in the Youth Court are ones we need to be alive to.  Unless a Certificate for Counsel is granted, the fees for counsel are the same.   Funding has recently improved for prosecution counsel, who are now paid £300 per day in the Magistrates’ Court and £400 a day in the youth court.  This is commensurate with a refresher (for some offences) in the Crown Court, and it is to be hoped that it encourages more senior practitioners to work prosecuting in the youth court.  

For defence counsel, the rates have not altered since either of us were called to the Bar (so in over twenty years).  This is not intended to be a polemic about legal aid funding – although earning between 18.75% (if the trial can’t go ahead) – 37.5% (if the trial is effective) of what your opponent is earning gives a stark idea of the position we are in.  

The point is simple – low rates mean that the bulk of youth court work is carried out by pupils and very junior tenants.  As call increases, visits to the Youth Court become increasingly infrequent, with the result that procedures have changed, and the approach can feel alien.  We at Carmelite equip our pupils with the specifics needed for youth court work from the off but it is notable that across the board very junior members of the profession will be dealing with cases that they would not be in the Crown Court (and at which a circuit Judge may at least raise an eye brow if they were).  As with many areas of publicly funded work both sides of the profession do their best to ensure the best representation without an eye to re-numeration but that is relying on goodwill.  An anecdotal example recently concerned a youth court trial due to take place for serious offences over four days. A certificate for counsel has been refused on the basis that any competent member of the profession can do the trial. Quite but we ask why should they be re-numerated at £80-150 a day when the Crown advocate (rightly) is being paid £400 a day?  What solicitor could themselves commit to four days out of their own diary to attend such a case with other demands placed on their time? Why should solicitors be put in the position of asking counsel to do, what must amount to, a ‘favour’ in order to ensure that there is the proper level of experience in representing someone charged with serious offences over a number of days?  If that case were adjourned under the fees protocol (2019 Magistrates Court Protocol) for a junior advocate in an ineffective trial would be £75.00 – when four days would have been booked out of the diary.  

Joined-up thinking?

Returning to the need for there to be proper application of the specific needs of the youth justice the findings of the HMCPSI report resonate with the myriad examples of poor practice often seen in the youth court – where the consequences are literally not thought through. The welfare of the young person is key, as reflected in the overarching youth guidelines. [4] This does not always sit easy with the day to day running of the youth courts.  One recent example where a young person was arrested for an offence allegedly committed months earlier hours before a youth court trial was due to take place. The trial would have proceeded despite representations as to the sleepless night in a cell, were it not for further delays securing his attendance at court and reviewing proffered pleas. In a system where everyone should be conscious of vulnerability and lack of maturity, surely thought could have been given to dealing with the ‘new’ offence at or after the court proceedings of the day.  

Another example causing frustration is reaching conclusion of youth court proceedings, arriving at a fair sentence designed to achieve the aims of youth sentencing, with the help of the almost without exception professional and proactive youth offending service (YOS), to find that the police then charge other offences that had been pending investigation (RUI). There is a Youth Court case we are aware of where a Criminal Behaviour Order (CBO) application was pressed and the order made to ‘bite’ on release of a young person who had been sentenced to a 24-month Detention and Training Order for the first time.  Imposing such an order allowed for no assessment of progress or acknowledgement of the impact of the sentence. This ignores other key principle in the overarching guideline – that the system should avoid over-criminalisation as well as recognise the need for rehabilitation and re-integration of young people.[5]

On the YOS the report notes that positive relationships between the CPS and YOS need to be harnessed to lead to good liaison on individual cases – and we should always remember that this applies to Defence communication with YOS which many youth focused solicitors do so well.[6] However, achieving the necessary joined up thinking involves all participants in the criminal justice system – from police through to custody staff – to understand why a specific focus is needed for young people.    

Achieving the aims of the youth justice system

Paragraph 1.1 of the report states the following: “Youth work is a specialist area that differs significantly from other work in the criminal court. The main aim of those involved in youth justice is to prevent reoffending and to protect the welfare of any child coming into the system. This gives rise to a raft of youth-specific law, government and agency policy, guidance and procedures”.  This is an apposite summary, as set out above in our view there is an acute recognition amongst defence practitioners of these features, it would be welcome if the efforts made on the defence side to ensure we consistently reach the standards HMCPSI seeks for the Crown (and in our view exceed in most cases) were properly recognised and rewarded.

***

Footnotes: 

[1] The report notes that training on MSA and County lines is inconsistent (see paragraph 5.8); the possibility of the statutory defence applying considered properly in only 49.6% cases.

[2] See p40 of the report.

[3] At paragraph 5.30.

[4] Overarching Principles – Sentencing Youths at paragraph 1.2

[5] Overarching Principles – Sentencing Youths at paragraph 1.3  

[6] At paragraph 5.3 of the report.

***

Alexandra Scott and Marie Spenwyn are frequently instructed in serious cases involving young defendants.  Marie Spenwyn is a committee member of the YPA (Youth Practitioners Association) – please contact YPAyouth@outlook.com if you would like to join or for more information.

26/05/2020

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