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April 21, 2017

Why the crown court is not the right place to try children

The twittersphere is alive with lawyers indignant that children accused of serious crimes are increasingly being dealt with in the youth court, rather than the crown court.  They are rightly concerned that children may not be getting the most experienced lawyers in the youth court, and that decisions are being made by district judges alone, rather than juries and crown court judges.  But what is really in the best interests of the child?  And should we all be campaigning for improvements to the youth court rather than bemoaning its greater use?

The crown court for a child is an intimidating, formal, adult space. The proceedings mirror those of adults, in the same environment.  Children are usually kept behind the secure dock, separated from family and lawyers.  If they are lucky, they have an intermediary with them.  In high profile cases, the court is full of lawyers, journalists and members of the public.  No child is likely to be able to understand what is going on, given that any trial is adversarial, and uses complex legal concepts and language (a child said “they talk a lot of Latin” to the Carlile inquiry.  After the trial of Thompson and Venables in 1993 their pioneering lawyers appealed to the European Court of Human Rights that the children’s right to a fair trial had been compromised – that the publicity and “circus-like” nature of the court-room inhibited their participation. The court ruled on this point in the boys’ favour:

“it was highly unlikely that either applicant would have felt sufficiently uninhibited, in the tense court room and under public scrutiny, to have consulted with their legal representatives during the trial or, indeed, that, given their immaturity and disturbed emotional state, they would have been capable outside the court room of co-operating with their lawyers and giving them information for the purpose of their defence”.

Unfortunately crown court trials of children as conducted today are little better than that of Thompson and Venables.  This is no fault of the lawyers concerned who are excellent.  But when I hear of yet another trial where the child defendants have spent weeks behind the perspex screen of a secure dock, I despair that the crown court will ever be fit for children.  Lawyers say they dare not ask for children to be allowed to sit in the well of the court for fear of annoying the judge.  Crown court judges still have little training in dealing with children and, unfortunately, do not appear to re-read the ECHR judgement before they preside over major cases.

One of the arguments put forward for trying children in the crown court is that it is open to the public and to journalists.  But is also one of the key problems.  Most countries in Western Europe and some USstates have closed courts for all proceedings involving children.  The youth court is closed.  Reporting restrictions are imposed on most crown court trials but these are often lifted on sentence.  Whether named or not, child defendants have intimate details about their lives published and are frequently vilified in the press and on social media.  There is huge disagreement as to whether the public interest in open justice should override the need to protect the welfare of the child, but everyone agrees that such publicity does harm the children concerned.

The youth court is not perfect but it could be adapted to be far more child-friendly.  I and others think that is not the case with the crown court.  So how could the youth court be improved to meet the concerns of lawyers?

1) The pay of advocates in the youth court needs to be raised.  For equivalent (or more serious) cases lawyers usually get paid less in the youth court than in the adult magistrates court.  All rates of pay should be reviewed but, in the meantime, there is provision for defence advocates to be paid considerably more for serious youth court cases – through the judge granting a certificate of counsel. The only issue with these is that many magistrates and lawyers are not aware of them.

2) We need a debate as to whether serious cases involving child defendants should be decided by one judge sitting alone.  This is what happens for serious sex offences heard in the youth court.  They are heard by a district judge – youth court magistrates are barred from presiding over these cases.  Lawyers feel that decisions by judge and jury are more balanced.  I have some concerns about juries’ ability to understand the complexity of child defendants, but am also convinced that no very serious case should be tried by a judge sitting alone. We need to institute mini juries in youth courts or stipulate that, for certain cases, a district judge should sit with two youth court magistrates.

Above all, we need an open debate about how to improve the youth court.  Provisions to keep more serious cases in the youth court were brought in in 2010 without communicating the rationale to lawyers.  But I would challenge any lawyer unhappy about the move to demonstrate that the crown court trials of children accused of serious crimes today are much better for defendants than that of Thompson and Venables.