Excellence in Advocacy

Latest developments in YJA

June 2018

MoJ publishes vision for secure schools

On 1st June, the Justice Minister, Dr. Philip Lee, launched the government’s vision for secure schools. This is in direct response to the Charlie Taylor Review which the ICCA highlighted in December 2017. Secure schools will have at their heart, education, healthcare and physical activity. Such a development is a much awaited departure from the current custodial estate with education as a secondary measure. Whilst it is likely to take some time to establish secure schools across the country, the first ones are expected to be in the North West and South East England with 60-70 places for young people who would currently be sent to Young Offenders’ Institutions or Secure Training Centres.

May 2018

Potential changes to the youth justice landscape

Two recently published reports highlight similar flaws in the current system of justice affecting children and young people. The Standing Committee for Youth Justice (SCYJ) has produced a report on child defendants and video links. Fewer than 12% of those surveyed felt it had made a positive impact on their experience. This fits with the apparent lack of engagement children and young people experience when having to navigate the criminal justice system leaving them feeling that they have no real participation in spite of the process addressing their behaviours and their futures.

The Centre for Justice Innovation has published a paper proposing a fairer way of dealing with young people between the ages of 18 and 24 who are currently treated in the criminal justice system in the same way as adults. The paper sets out the method and rationale in order to achieve a fairer process for those in this age bracket who are not ‘mature’; who are from BAME backgrounds and treated differently; who are previously ‘looked after children’ with little or no ongoing support. Over 75% of young people in this age group re-offend which has extensive financial consequences and it can destroy communities.

There is much merit in both these published papers and advocates who prosecute and represent children and young people in the criminal justice system are encouraged to read them.

S.45 Modern Slavery Act 2015 defence – clarification of the burden of proof

R v MK: R v Persida Gega (aka Anna Maione) [2018] EWCA Crim 667

Two otherwise unrelated appeals were heard before the Lord Cheif Justice of England and Wales, the RT. Hon. Lord Burnett of Maldon, The Hon. Mrs Justice Andrews DBE* and the Hon. Mr Justice Martin Spencer.

Both appellants were Albanian nationals and both had raised the defence available to them under s.45 Modern Slavery Act, that they had been victims of trafficking.


The first appellant, MK was originally convicted of two offences; conspiracy to supply a Class A drug (cocaine) and being in possession of an identity document with improper intention. On 26 June 2017 she was sentenced to 8 years' imprisonment on the offence of conspiracy and 5 months' imprisonment on the second count, to run concurrently. In the same month the second appellant was convicted of a single count of possession of an identity document with improper intention. She was sentenced to 15 months' imprisonment.

Both Judges at first instance came to the same conclusion as to the interpretation of the burden of proof in such cases:

(i) The defendant bears an evidential burden to raise the issue whether she was a victim of trafficking or slavery;

(ii) Having successfully done so, it is for the prosecution to prove, beyond reasonable doubt, that she was not;

(iii) If the prosecution succeeds in that, the section 45 defence will not avail the defendant;

(iv)However, if the prosecution fails in this respect, the legal or persuasive burden of proof in respect of the other elements of the defence falls on the defendant. Therefore, if the defendant is over 18 years old, she must prove on the balance of probabilities:

(a) That she was compelled to commit the offence;

(b) That the compulsion was as a direct consequence of her being or having been a victim of slavery or relevant exploitation; and

(c) That a reasonable person in the same situation as her and having her relevant characteristics would have no realistic alternative to doing the act which constitutes the offence.

Court of Appeal

The CA concluded that this was wrong and that section 45 of the 2015 Act does not bear the interpretation of the judges at first instance.

It does not implicitly require the defendant to bear the legal or persuasive burden of proof of any element of the defence.

The burden on a defendant is evidential. It is for the defendant to raise evidence of each of those elements and for the prosecution to disprove one or more of them to the criminal standard in the usual way.

Leave to appeal was granted against conviction in the case of MK. The CA quashed the conviction ordering a retrial. The second appellant’s conviction was deemed to be safe in the face of overwhelming evidence in spite of the misdirection by the trial judge of the burden of proof.

*Mrs Justice Andrews DBE is a Governor of the ICCA

An Insight Into Child Trafficking

The ICCA undertook extensive research to produce their recent guide on Child Trafficking and County Lines. We were impressed by the work and training provided by Every Child Protected Against Trafficking (ECPAT) and decided to bring some of that expertise to life by interviewing ECPAT’s Head of Training, Laura Duran.

The interview is now available [HERE] in 4 separate chapters:

1. The work of ECPAT and their training
2. ECPAT’s report – ‘Heading Back to Harm’
3. Children exploited into cannabis cultivation - featuring ‘The Secret Gardeners’, ECPAT’s short film which has recently won the gold medal in the Human Concerns category at the New York Festivals World’s Best TV and Films awards
4. The Modern Slavery Act 2015

Practitioners will find this ICCA film useful when they prosecute or represent children charged with criminal offences that are linked to them being exploited or trafficked. The interview gives an indication of the scale and extent of the problem.

BSB introduces compulsory registration of Youth Court practices

Youth justice practitioners are alerted to new regulatory requirements in relation to Youth Courts which the BSB say will enable them to ‘provide more effective supervision and promote the specialist skills that this area of work requires’. Registration will be effective via the new MyBar portal and will appear publicly on the BSB’s register of barristers. 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. 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 ICCA is firmly of the view that Youth Court work is a specialist area of practice. With this in mind, the ICCA has now produced seven specialist guides for youth justice practitioners and a short illustrated film to help navigate this complex area of practice.

April 2018

Home Office Serious Violence Strategy

On 9th April, the Home Office published its Serious Violence Strategy setting out the response to serious violence and recent increases in knife crime, gun crime and homicide.

There are four main themes tackled in the strategic work one of which is tackling county lines and the misuse of drugs. A new National County Lines Co-ordination Centre is to be developed to tackle violent and exploitative criminal activity associated with county lines. The ICCA has produced guidance to assist practitioners who prosecute and defend in cases where children and young people are involved in criminal activity along county lines.

March 2018

Howard League guide for sentencing children

Children and sentencing: A guide for adults supporting children facing sentence in the criminal courts in England and Wales

The Howard League has produced a comprehensive guide dealing with the issues surrounding child sentencing. 78 children participated in workshops and questionnaires to enable the Howard League to complete this work.

Guidance for Lawyers

The guide is aimed at lawyers, youth justice professionals, social workers, experts and other supporting adults, including parents and carers who are working with and supporting children aged 17 and under who are being sentenced in the criminal courts in England and Wales. The aim of the guide is to help professionals and those adults to better understand their respective roles and responsibilities as well as what to expect when a child or young person is sentenced. Ultimately it is hoped that this will lead to fairer sentencing thereby reducing the likelihood of prison sentences and reoffending rates.

The guide references the work of the ICCA throughout. Practitioners are encouraged to use the Howard League’s Children and Sentencing guide as an additional resource when preparing to prosecute or represent children and young people who face a sentencing hearing. There are helpful ‘Practice Points’ within the body of the resource.

Two new guides for youth justice practitioners

The ICCA has produced two new guides to complement its suite of existing materials. The new guides deal with child trafficking and sexting.

The child trafficking guide covers the topical issue of 'county lines'. 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 those who exploit children in this way. The ICCA has worked closely with the Youth Justice Legal Centre and Every Child Protected Against Trafficking (ECPAT) to produce new guidance. We have recorded a filmed interview with Laura Duran, Head of Training at ECPAT giving insightful background to the extent of child exploitation in the UK.

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. 

February 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.

November 2017

New ICCA Guide of Trafficked Children – coming soon

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. 

October 2017

Sir James Mumby's Parmoor Lecture

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.

 Children in Custody new Concordat

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.


New regulatory requirements

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 hearingsbail and remandsentencinganonymity 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.  

Participatory Youth Practice framework (PYP)

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.

September 2017

Judicial College - updated Youth Court Bench Book

The Judicial College has released an updated Youth Court Bench Book which incorporates the Magistrates’ Association Protocol at Appendix A.

The Lammy review

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. 

RCSLT's new research

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”.

YJLC analysis

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 [2017] 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 [2016] UKSC 8 and the subsequent decision in R v Johnson & Ors [2016] 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.

  1. 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 [2014] EWCA Crim 2064 apply to child defendants as witnesses in the same way as they apply to other vulnerable witnesses.” (paragraph 226).
  2. There is reference again to compulsory training for advocates representing children although there are no such plans in place currently.
  3. 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.
  4. 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.
  5. Paragraphs 105 – 115 provide a useful summary of the correct criminal procedure and law as applicable to young or vulnerable defendants.
  6. 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.”

June 2017

On 9 June 2017, the Court of Appeal handed down judgment in the case of Markham and Edwards v The Queen [2017] 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.

Back to ICCA's Youth Justice Advocacy guides and video resource.

Page last updated on 08 May 2018
Back to top