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April 9, 2020

Prosecuting children – why it requires expertise and experience

In the time of Corona, some stories get buried. In March, the inspectorate of prosecution published a report on serious youth crime. The findings make really concerning reading. Prosecutors of children were not sufficiently trained, poorly monitored and often ignored youth justice policy and legislation.

The inadequacies of the youth court are unfortunately somewhat hidden. The court is closed since the glare of publicity would not help children’s rehabilitation and would breach their privacy. So not enough is visible, even to other defence lawyers, as to how the system works. In 2015 research was published on the quality of defence advocacy in the youth court. The findings made sobering reading

– advocates lack knowledge of youth justice law, procedures and provisions.
-Many advocates struggle to communicate well with young defendants and witnesses and, particularly, to cross-examine in an appropriate and effective manner.
– Advocates and their professional colleagues often fail to recognise the significance of Youth Court work – in terms of the level of offending dealt with and the seriousness of the repercussions for the parties involved.
– Some advocates treat individual cases as matters to be processed as quickly as possible and thus fail to prepare, research and review their cases adequately

Efforts have been made in the last five years to improve the quality of defence advocacy, but there has been no significant policy change. The CPS inspectorate’s report shows there are significant deficiencies in prosecution too.

The issue that most worries me is ignorance (wilful or not) of the difference between children (or “youths” in the report) and adults. Youth justice legislation is very different to that of adults, as are children’s needs – the welfare of the child must always be taken into account and the need to reduce reoffending should guide decision-making. But in charging children, prosecutors properly applied youth policy and guidance in only 38% of cases.

This may be because youth prosecutors didn’t have sufficient training. Most of the key decisions should be made by specialist prosecutors. But many trials are assigned to non CPS staff (“agents”) – “these trials can be complex, and we found limited evidence that cases were allocated to agents known to be appropriate”. The CPS has recently been running a one day training course for new in-house specialists. One day is not nearly enough to absorb the complexity of youth court law, so its good news this is being doubled in length to two days. But the inspectorate found a number of “specialist” prosecutors had not even done the one day course. And that some areas offered no CPD training.

Without good training, its more likely that mistakes will be made and poor practice persist. Inspectors found

  • Prosecutors consulted the youth offending team (or another third party) in less than half the cases before charging
  • The vulnerability of the defendant was considered in only 44% of relevant cases in deciding whether a prosecution would be in the public interest. Too often prosecutors also didn’t take proper account if a child was looked-after or a potential victim of trafficking
  • Modern slavery provisions were applied in fewer than half the cases they could have been
  • Some case files suggested the prosecutor had failed to recognise the suspect was a youth at all
  • Disclosure was often poor – disclosure obligations were only fully met in 52% of cases.

These shortcomings could be improved by training and experience, and by ensuring that youth work remains in the hands of specialists. But other systemic issues suggest the CPS needs to re-prioritise youth court work. Too often youth court cases were treated like other magistrates’ court cases, even though they were often much more complex. This meant prosecutors did not have enough time to review cases and prepare them for trial.

And delay was a big problem – as it has been in the Crown Court. Over a third of youth cases were not dealt with promptly and in some cases the delay between offence and charge was as long as a year. A district judge said he and colleagues “feared that witnesses’ recollections of events would fade, and victims and witnesses would become disengaged, or that their ability to sentence youths properly and effectively was hampered by delay”. Delays were exacerbated when defendants were sent a postal requisition to appear in court, many months after being interviewed by police. Why anyone ever thought it was a good idea to rely on snail mail to get a chaotic teenager to court is hard to understand.

This is an excellently written, if slightly shocking, report, showing once again why our youth court system is not fit for purpose. No individual prosecutors are to blame, but the youth prosecution system is clearly not working. Post Covid emergency, I hope the CPS will take the recommendations forward.

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