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August 19, 2017

A child’s right to a fair trial

Few dare to criticise the Court of Appeal. Lawyers (rightly) fear any criticism may be seen as an attack on judicial independence. But some very erudite lawyers put their heads above the parapet on twitter the other day after @thepubliclawyer tweeted: “thoroughly depressing Court of Appeal judgment here on joint enterprise, young defendants, autism and life sentences”.@hannahquirk1 responded “It’s noteworthy that CoA is 1 area of criminal justice system that never addressed its part in #wrongfulconvictions & has not been reformed”.

As a non lawyer, I take my life in my hands in even discussing the judgment that sparked this discussion. But it was very important for campaigners on joint enterprise and youth justice. Three judges including the Lord Chief Justice, dismissed applications to appeal the convictions of children involved in two “joint enterprise” cases.  I won’t try to explain the legally complex joint enterprise issues, but I will explain why the dismissal of the rest of the case – that the children did not get a fair trial – is a huge step back for youth justice.

The trial of Thompson and Venables for the murder of James Bulger was a circus, in which the children were tried in Crown Court by lawyers in wigs and gowns using a dock for the defendants. The boys were so vilified in the press coverage that, having been named, they were then given life-long new identities in order to ensure their safety. The boys appeared to have little idea what was going on during the trial, and their lawyers took their case to the European Court of Human Rights. They won the case that the boys did not have a fair trial since the court and its processes were inappropriate for children. One key issue was the dock. It was found that the boys should not have spent the whole trial behind a raised dock.

The case was seen as a breakthrough for the rights of children in trouble with the law. But we seem to have taken one step forward and several back since then. Child defendants have a (qualified) right to use intermediaries to facilitate their giving evidence. But they are only occasionally granted leave to use an intermediary throughout proceedings. Judges and barristers still sometimes (often?) wear wigs and gowns. And in serious cases children are routinely kept behind a secure dock throughout the case. This has happened in many of the recent cases in which children have been accused of murder, and no-one appears to suggest avoiding the use of the dock, despite the fact that today’s secure dock is much more separate from the court than the dock used in the Thompson/Venables trial. In both the cases dealt with by the Court of Appeal (as with many other recent serious cases), the children were named by the judge, thus damaging their chance of turning their lives around in the future.

But the Court of Appeal judgment suggests that our top judges are not inclined to challenge the current status quo. The defence lawyers (amongst the best in the country) contended that some of the boys who had been convicted of the Liverpool launderette murder (in which a “gang” killed a man in a launderette) did not get a fair trial, because they could not fully participate – the boy defendants were kept together in a secure dock, were questioned inappropriately and, despite profound learning difficulties, did not have intermediaries throughout the trial to help them understand what was going on.

There is good research evidence that many adults find it hard to understand a normal Crown Court trial, let alone a complex joint enterprise case. There is overwhelming evidence that children (under 18 years olds) cannot participate fully in court because the process, language and the law itself is too complicated. Greg Stewart, an experienced solicitor, described child defendants he worked withfor the Carlile inquiry on the youth court:

They’re very apt to agree with propositions that you put to them, particularly in the context of representation in a court environment. So they’ll repeat the leading questions, I often personally get my clients, for instance – we write things out, and then I can see that they can’t read and write. They’re very street savvy and they can speak and communicate very well. But actually, if you get them assessed, you find out they’ve got very low IQ, or their oral IQ – their verbal IQ is higher than their cognitive IQ. There are also ways they mask all the difficulties that they have, which unless you’re dealing with them on a daily basis, and have the perseverance and persistence to try to get through that barrier, they really have a passing participation in the process in my experience.

Two of the children accused of “joint enterprise” murder in the Liverpool laundrette case were assessed as having very low IQ.  McGill’s “cognitive ability was in the bottom 5% for children of his age and he had been diagnosed with ADHD so that he could become distractible and physically agitated, as demonstrated in his police interviews”. Corey Hewitt was aged 14 but

  • His receptive vocabulary was similar to that of a child aged 7
  • His understanding of the meaning of sentences when constructed in different types (grammatical structure) was similar to that of a child aged 8.
  • His auditory working memory capacity (processing and understanding information in sentences) was limited to, at most, 4 key words. His level was similar to that of child in infant school.

He was granted leave to use an intermediary throughout the trial but on the second day of the trial “counsel told the judge that Corey did not want an intermediary in the dock”. So this child with huge difficulties understanding information sat in a dock throughout a long Crown Court trial, with no adult he knew in the dock with him (surprisingly his care worker sat next to the dock, not in it).

The Court of Appeal dismissed any possibility that Corey did not properly participate in proceedings “whatever the experts may have thought would be the case, and despite Corey Hewitt’s undoubted difficulties and his young age, the evidence shows that he was fully engaged in the process, understood the process and was able to communicate effectively with his trial representatives and to the jury”.  The Court of Appeal relied on the evidence of the trial counsel who was adamant that Corey did participate properly, and on the presence of his care workers throughout the trial. But care workers are just that – they are not intermediaries with experience of interpreting proceedings to a vulnerable teenager. Its hard to believe (though of course possible) that such a child, sitting with his co-defendants, separated from the rest of the court by a Perspex screen, would properly understand a complex trial.

On the matter of the secure dock, the Court of Appeal does concede that the issue of the use of the dock should have been considered, but appear to place the onus on lawyers to challenge the use of the dock. Anyway, the judgment says “we have no doubt that the judge would have held that for reasons of security and as a matter of practicality it was not possible to have five young defendants outside the dock and the one adult defendant in the dock….Given the number of participants – defendants, lawyers, intermediaries, security staff and lawyers, the courtroom was not large enough to seat each of five defendants in the well of the courtroom with adequate security”.  But if security and practicality are prioritised, they will always trump a child’s right to sit near their family and lawyers – there will always be security concerns in relation to a high profile, murder trial involving child defendants.  Perhaps the most surprisingly statement is that “even if it had been appropriate for arrangements to be made for him [Corey Hewitt] to sit outside the dock, it would have made no difference”.

Throughout the judgment, there is reference to the children in the Liverpool case being content with the arrangements, eg Corey Hewitt with being in the dock and with the use of wig and gowns.  I think it is right to ask any child their views, but these children, like all others, want to please. What is missing here is leadership on what makes for a fair trial for child defendants with significant learning difficulties. It was for the trial judge to at least justify the use of the secure dock; even better to work out a way of making the trial work with the children sitting in the well of the court. Same with wigs and gowns.

The depressing thing about this judgment is that it implies that the current way of treating children in the Crown Court is OK. But in the Liverpool case, the only major concessions made to the fact they were children (with considerable behaviourial and intellectual issues) were the use of rest-breaks, care with questions (though even here mistakes were made), and the use of an intermediary for some of the children for evidence only. Given the intimidating, alien atmosphere of a Crown Court these concessions are way too small. And this judgment absolutely cements my view that all cases involving child defendants should be held in the youth court, albeit with properly paid lawyers and possibly with a mini-jury.

PS as usual I would welcome comments on this, on twitter or linkedin. I am not a lawyer and may have missed something. And of course I did not hear the arguments made in the Court of Appeal.