The BSB has announced a significant change to their Handbook which requires barristers working in the Youth Court, (and those who intend to do so in the next 12 months), to register with the BSB and declare that they have the specialist skills, knowledge and attributes necessary to work effectively with young people.
The ICCA has predicted this development and urges any Youth Court practitioner to familiarise themselves with the Youth Proceedings competences and guidance.
Registration will be effective via the new MyBar portal and will appear publicly on the BSB’s register of barristers.
The ICCA is firmly of the view that Youth Court work is a specialist area of practice. The BSB regard it as a high-risk area of work as a result of their 2015 Youth Proceedings Advocacy Review which found that standards of advocacy in the Youth Court were variable. The BSB responded by developing the Youth Proceedings competences.
The Regulator has made it known that they will review barristers who are registered for Youth Court work which could then lead to CPD spot checks and / or the requirement for barristers to provide evidence in support of their declaration of competence.
New Sentencing Guidelines Published
On 1 March 2018, the Sentencing Council published new guidelines for sentencing in respect of the possession of bladed articles and offensive weapons, including acid.
At page 15, the guideline deals with bladed articles and offensive weapons (possession and threats) in respect of children and young people which are to be read alongside the Overarching Principles – Sentencing Children and Young People definitive guideline.
The new guidelines come into force on 1 June 2018.
Home Office Launches £13 Million Trusted Relationship Fund
On 25 February 2018, the Home Office launched a £13 million fund to help professionals form close, protective relationships with children and young people at risk of sexual exploitation, county lines gang crime or relationship abuse.
Last year the Home Office commissioned a review by the Early Intervention Foundation which found that a trusted relationship with an adult is an essential part of any programme of support for vulnerable children, and that the lack of trusted relationships is consistently cited in reviews of failures around child sexual abuse and exploitation. The fund will also strengthen the evidence base to establish the initiatives that work to protect young people from exploitation and abuse.
The ICCA will shortly start work on a new guide for advocates working in the area of youth justice to help to equip them with all the necessary information and skills to effectively represent and prosecute trafficked children.
Yesterday the Times, headlined that ‘thousands of children and teenagers are being used by criminal gangs as drug runners in a grooming scandal with echoes of Rotherham and Rochdale’.
According to the National Crime Agency (NCA) there now exists a widespread “county lines” drug trade. Urban gangs use county lines to move Class A drugs and cash between inner-city hubs and more rural areas. According to the NCA, there are at least 720 county lines across England and Wales.
In order to avoid prosecution, gang members are targeting, grooming and deploying children to carry drugs, cash and weapons. The children swept up in this form of exploitation are attracted by large sums of money but they and their families face the threat of kidnap, torture, rape, physical attacks and death if they fail to deliver the goods or lose the cash. They are often robbed because of the large sums of money involved. It is imperative that children who disappear are reported as missing immediately; once they are swept up in grooming rings, they become invisible.
Modern slavery legislation is likely to feature in any prosecutions brought against the drugs lords who exploit children in this way.
Advocates sometimes fail to identify cases where children have a modern slavery defence and too many children are advised to plead guilty. Instead of raising the issue of exploitation at the point of sentencing, advocates should make representations to the Crown before on their own guidance and EU framework on non-punishment and be more prepared to advise clients on Section 45 of the Modern Slavery Act.
The ICCA will work closely with Every Child Protected Against Trafficking (ECPAT) to produce guidance.
In his Parmoor Lecture on 30 October 2017, Sir James Mumby, President of the Family Division, called for serious consideration to be given to the establishment of problem-solving courts under the auspices of an extended jurisdiction of the family court to focus on the whole family and not just, for example, the ‘disposal’ of a criminal case involving a troubled child or teenager. Recognising that this is unlikely to be a solution reached in the near future, he called in the interim for ‘cross-ticketed’ judges and cross-deployment of the judiciary to tackle inter-related familial issues in a problem-solving way. He also asked if the CPS might consider revision of their policies in relation to the prosecution of children.
The ICCA has indicated that the landscape of youth justice will change and shift dramatically over time . Sir James Mumby had added his voice to the swell of opinion which recognises that there are complex and fundamental problems that bring children and parents into contact with the courts. Currently, there is too little joined up thinking, too little money and too little recognition of the importance of Articles 3 and 12 of the United Nations Convention on the Rights of the Child and Article 8 of the European Convention in our law. Advocates practising in this area should be aware of the issues confronting children, young people and their families embroiled in the youth justice system.
On 30 October 2017, the Home Office published a new Concordat on Children in Custody. It follows a lengthy project tackling the problem of transferring children from police custody to local authority accommodation; a requirement under PACE 1984 and the Children Act 1989. It was apparent that police forces and local authorities often misunderstood these statutory obligations and that there was a dearth of local collaboration to effect successful transfers of children. There is now a useful Concordat which sets out the duties and a protocol for practice. For advocates this is crucial information and useful flowcharts are found at pages 24 and 25 of the Concordat.
The ICCA’s Guide on Bail and Remand deals with this topic at page 5 and refers advocates, at footnote 16, to Government guidance published 15 October 2014. Advocates should now refer to the new Concordat.
The Bar Standards Board (BSB) announced on 27 October a new set of regulatory requirements. One of them applies to barristers who practise in the youth courts.
These new rules are to be submitted to the Legal Services Board (LSB) for approval shortly. If the LBS grants its approval, this will mean that from February 2018, any barrister practising in the youth court will be required to register a youth court practice with the BSB. Any such declaration will need to be made at the time of application for the renewal of a practising certificate.
The BSB say that this new rule will assist to raise standards in the youth courts. The Bar Council has responded with concern that the BSB proposal may not actually lead to an improvement in Youth Court advocacy. This concern was raised as part of the Bar Council’s response to the consultation held earlier this summer.
ICCA’s current package of an illustrated film and five guides span the work of youth justice practitioners across the youth court and the crown court; the materials seek to supplement the advocate’s toolbox of specialist skills. The guides for advocates cover: first hearings, bail and remand, sentencing, anonymity and reporting restrictions all of which are important areas of practice affecting children and young people in whichever court they appear. We have also developed a specific guide to assist with making an application for assigned advocate; this guide should help practitioners to file the necessary paperwork to be properly remunerated for serious cases dealt with in the youth courts. The College is working with the Criminal Bar Association to develop specialist youth justice training for pupils and new practitioners.
A new research-based Participatory Youth Practice framework (PYP) was launched in Greater Manchester on 26 October. The framework proposes and recommends a new approach to youth justice with the focus on participation of the child or young person involved in crime. There are a number of downloadable resources to help youth practitioners involve young people in the process and to gather information which may assist in explaining how youngsters become involved in crime.
The same way our film addresses engagement and communication, the PYP places the emphasis on enabling a young offender to participate in the proceedings and feel ‘listened to’.
Young people are more likely to re-offend if they just become part of the process of youth justice. ICCA’s guide on Sentencing of Young Offenders stresses that rehabilitation and reintegration are more important considerations than punishment. The principal aim of the youth justice system is to prevent reoffending.
An independent review into the treatment of, and outcomes for, Black, Asian and Minority Ethnic (BAME) individuals in the Criminal Justice System (CJS) was published on 8 September 2017. There are important recommendations for practitioners involved in the prosecution and representation of BAME individuals in the CJS. Particularly relevant are recommendations nine and ten on page seven.
The Royal College of Speech and Language Therapists (RCSLT) has issued new research on the communication needs of those in the youth justice system.
The paper sets out clearly the evidence base for Speech, Language and Communication Needs (SLCN) in the criminal justice system; stating that: “The implications for a young person with SLCN within the CJS can be profound. Within the CJS, young people with SLCN are faced with situations in which they require the ability to understand and retain complex information in stressful circumstances. They need to understand the processes they are subject to as well as communicate and interact proficiently with a wide range of individuals”.
The Youth Justice Legal Centre (YJLC) has helpfully and thoroughly analysed the decision in R v Grant-Murray and Henry; R v McGill, Hewitt and Hewitt  EWCA 1228 which raises, among other matters, the issue of the effective participation of young offenders in the criminal justice system. All five appeals against the joint enterprise direction were rejected, following the decision in R v Jogee  UKSC 8 and the subsequent decision in R v Johnson & Ors  EWCA Crim 1613. Whilst this case is a further positioning of the Court of Appeal in relation to appeals based on a pre-Jogee interpretation of joint enterprise, it does assist practitioners with the way forward in terms of representing young people in the criminal justice system.
- For example, at paragraph 220 onwards, under the section headed: “The adequacy of current procedures for the trial of young persons” the Court of Appeal confirmed: “…..that the principles in R v Lubemba  EWCA Crim 2064 apply to child defendants as witnesses in the same way as they apply to other vulnerable witnesses.” (paragraph 226).
- There is reference again to compulsory training for advocates representing children although there are no such plans in place currently.
- At paragraph 227 the Lord Chief Justice announced an amendment to the plea and trial preparation hearing (PTPH) form. This will now include a checklist of the things that need to be considered when young defendants are in the Crown Court. It will also require the judge with conduct to give reasons for departing from the practice directions. This is important in terms of decisions relating to children and young people sitting outside the dock.
- Interestingly, paras 95- 99 of the judgment deal with the submissions on tailoring directions and discusses some of the recent scientific developments about adolescent brain development.
- Paragraphs 105 – 115 provide a useful summary of the correct criminal procedure and law as applicable to young or vulnerable defendants.
- Paragraph 112 refers specifically to The Advocate's Gateway Toolkits and the importance of clear language and the avoidance of tag questions when questioning certain witnesses; “It is important to emphasise that these observations apply to defendants as much as to other witnesses.”
On 9 June 2017, the Court of Appeal handed down judgment in the case of Markham and Edwards v The Queen  EWCA Crim 739. The matter concerned appeals against sentence and an appeal against the ruling of Mr Justice Haddon-Cave to lift the reporting ban and allow unrestricted reporting. Both defendants were 15 at the time of convictions. Their sentences were reduced from 20 years to 17 and a half years. A stay of the decision at first instance to lift reporting restrictions was granted to allow for the matter to be judicially reviewed. The appeal came before the judicial review hearing could be listed, making Judicial Review proceedings academic.
The judgment deals with the matter of the reporting restrictions at paragraphs 73 – 92. Having balanced the arguments in relation to competing principles (primarily articles 8 and 10 ECHR), the Court of Appeal came down firmly in favour of lifting reporting restrictions on the basis that it is in accordance with law, it pursues a legitimate aim and is a reasonable and proportionate measure. This recent decision should be read in conjunction with the information contained in ICCA's guide to anonymity and reporting which sets out case by case advice on these matters.