Evidence submitted by Standing Committee
for Youth Justice (LAR 166)
The SCYJ is a membership body that:
(a) Provides a forum for organisations, primarily
in the non-statutory sector, working to promote the welfare of
children who become engaged in the youth justice system; and
(b) Advocates a child-focussed youth justice
system that promotes the integration of such children into society
and thus serves the best interests of the children themselves
and the community at large.
MEMBERS OF THE STANDING COMMITTEE FOR YOUTH
JUSTICE
| Barnardo's |
Children's Legal Centre |
| Children's Rights Alliance for England |
Children's Rights Officers Association |
| CRE | Coram |
| Drugscope | JUSTICE |
| The Children's Society | The Howard League for Penal Reform
|
| The National Youth Agency | Nacro
|
| National Association for Youth Justice |
National Children's Bureau |
| NCH | Newmartin Youth Trust
|
| National Council of Voluntary Child Care Organisations
|
| NSPCC | Rainer |
| Revolving Doors | Save the Children
|
| Secure Accommodation Network | SOVA
|
| Voice | Prison Reform Trust
|
The contents of this paper do not necessarily reflect the
views of each of the Committee's member organisations.
1. The concerns of the Standing Committee for Youth Justice
(SCYJ) regarding the implementation of Lord Carter of Coles' review
are confined to its impact upon the youth justice system. The
majority of the SCYJ's members do not hold legal aid franchises.
Our concerns centre upon the following questions posed by the
inquiry, as they apply in the field of youth justice:
— What benefits might be generated for defendants
and others by adopting these proposals? Also what impacts/disadvantages
might result from implementation?
— What impact the proposals will have on different
communities—especially, in our case, children, including
Black and Minority Ethnic children. Further, since the report
envisages an impact on BME firms in particular, it stands to reason
that the children served by these firms are likely to suffer;
— Whether the measures proposed will promote the
provision of high quality advice and support the effective and
efficient operation of the justice system.
2. Our primary concerns are:
— The introduction of fixed fees will have a disproportionate
impact on child defence work in criminal cases, since much of
this is by its nature, and if done properly, likely to be more
time-intensive than analogous work for adult clients;
— The abolition of discrete waiting time payments
will impact disproportionately upon the representation of children
because of time spent, for example, in breaks and in waiting for
appropriate adults;
— Restrictions on taking work outside a particular
geographical area may impact disproportionately on children, who
benefit particularly from having a solicitor who is known to them;
— Pressures on solicitors to take on more work may
mean they are both likely to spend less time with child clients,
and are less willing to take on "difficult" cases involving
children.
3. We therefore recommend that:
— The proposed changes be delayed pending a through
and detailed analysis of the impact they may have on children
in the criminal justice system, including Black and Minority Ethnic
children;
— Safeguards be introduced to protect child defendants:
this might include the creation of child defendants as an "exceptional
category" that can be represented outside any fixed fee structure
or geographical restrictions.
Geographical restrictions: recommendations 4.1 and 4.6
4. We are concerned that the development of boundary
areas, whereby a firm may only be able to undertake 20% of its
criminal defence work outside a particular geographical zone,[105]
may impact particularly upon children in the criminal justice
system. It is particularly important for a child to have a solicitor
with whom they have a relationship of trust and confidence. If
a child is arrested outside the zone where their usual solicitor
is located, or moved to a new area for reasons beyond that child's
control, this proposal may make it difficult for them to be represented
by that solicitor. This may result in more work being undertaken
by the new solicitor learning details of the child's background,
family situation and offending history. It is also more likely
in these circumstances that underlying issues relevant to the
proceedings such as a mental condition or particular family circumstances
may be missed by the new solicitor and that inappropriate decisions
will therefore be made.
Children at the police station: Recommendation 4.6 and 4.7
5. There are many ways in which the representation of
children at the police station is likely to be more time-consuming
than representation in an analogous case involving an adult defendant.
Firstly, a child under 17 will be entitled to have an appropriate
adult informed of their detention, who will be asked to come to
the police station.[106]
The legal adviser may spend time waiting for the appropriate adult
to arrive. In the case of looked after children, it may be time-consuming
for the police to ascertain who is responsible for their welfare,
and for a member of staff of the appropriate agency to attend.
6. Conferences between legal adviser and client may also
be more time-consuming, since it will be necessary for the legal
adviser to ensure that the child defendant understands the legal
advice he or she is being given. Similarly, it may take longer
for the child to give their account of events in interview. In
complex and serious cases where interviews and conferences may
be lengthy, a child will need more frequent breaks than an adult.
Further, it is well known that children often decline to exercise
the right to legal advice—on the basis that they do not
understand the significance of the various processes and, among
other reasons, think they will be released more quickly if they
do not exercise this right. The solicitor may therefore need to
devote time to gaining the child's cooperation, attention and
trust before meaningful consultation.
7. A substantial number of children in the criminal justice
system may be suffering from mental health problems and/or mental
conditions. Research commissioned by the Youth Justice Board in
2005 found that 31% of young offenders interviewed had a mental
health need, that almost a quarter were identified as having learning
difficulties and a further third had borderline learning difficulties.[107]
Such children may require assessment before being interviewed
by police; however, the pressure on time caused by fixed fees
work may lead to solicitors missing the signs of mental conditions
or being reluctant to wait for an assessment to be carried out.
8. While it is proposed that there be an `escape mechanism'
for "exceptional high end cases" (para 37) the "escape
thresholds" proposed in Annex 4.2 are too high; we are concerned
about the impact of these proposals upon cases involving child
defendants which are more time-consuming than analogous cases
involving adult defendants but do not reach the escape threshold.
9. For these reasons, we are concerned that the imposition
of a new police station procurement scheme, based on fixed fees
per case that include travel and waiting, as envisaged in Recommendation
4.7, will impact disproportionately on the defence of children.
It may lead to reluctance to take on child defence cases and/or
be an incentive to hurry conferences with children. Overall, it
may impact upon the quality of representation provided to children
at the police station.
Children in the youth court: recommendations 4.8 and 4.9
10. Lord Carter's review is silent in relation to the
youth court. If the scheme proposed for adult magistrates' court
proceedings is also applied to children in the youth court, we
are concerned that again, the quality of representation at this
stage may suffer. While the base fee may vary for offence type
and case type, there is no suggestion of an uplift for youth court
cases. For the reasons given above, conferences with child defendants
may take longer; in the event of the trial of a younger child,
the court may sit for shorter hours and take more frequent breaks.
11. It should be remembered that some cases in the youth
court will involve more serious offences than would be tried in
a magistrates' court, because of the difference in allocation
arrangements, meaning that in contested proceedings longer trials
are more likely in all events. Standard fees that may be appropriate
for the magistrates' court are therefore unlikely to be appropriate
for the youth court.
12. While it is proposed that there be provision for
"escaped cases", we envisage that the number of hours
pre-defined would be high, since it is proposed that these comprise
a "small proportion of exceptional cases". This will
mean that many youth court cases will be paid at standard rates,
despite being potentially more time consuming for representatives.
13. Furthermore, the seriousness and complexity of some
cases in the youth court—which if they involved an adult,
would be heard in the Crown Court—means that higher levels
of preparation may be necessary. It is therefore inappropriate,
we believe, to apply the proposed magistrates' court scheme to
youth court cases.
14. Combined with the extra pressure on representatives
to take on more cases, we are concerned that these proposals may
incentivise the spending of insufficient time with child clients
or to a reluctance to take on youth court work, and that the quality
of justice for child defendants in the youth court will therefore
suffer.
15. We therefore recommend that if a fixed fee structure
is adopted, either that a separate scale be developed for the
youth court (similar to the sliding standard fee arrangements
that are currently in operation) or that the "escape"
threshold is sufficiently low so as to ensure that youth court
trials in serious cases are properly remunerated.
CHILDREN IN
THE CROWN
COURT
16. We are generally concerned at the impact of any scheme
that incentivises the early resolution of cases upon child defendants.
Lord Carter's report proposes that the Crown Court uplifts should
be "tapered over the course of a case so that payment is
front-loaded to reward early preparation and resolution of cases".[108]
While we recognise that there are some advantages to early resolution,
we are concerned that child defendants—who may be more susceptible
to pressure, say, to plead guilty, and who may tend to be more
interested in putting an end to a case in the short term than
in obtaining the right outcome through a prolonged trial, should
not be put under any pressure to resolve proceedings prematurely.
17. In addition, the complex nexus of social welfare
problems that children in the criminal justice system face are
often inextricably related to their offending behaviour. Civil
lawyers working to resolve the social welfare problems of these
children may face similar pressures to those outlined above. Civil
lawyers working to resolve a child's housing or mental health
problems play an important role in the journey through the criminal
justice system as their involvement may often enable courts legitimately
to pass non custodial sentences.
CONCLUSION
18. Lawyers representing children in public law and family
proceedings have made forceful representations in respect of the
impact of these proposals on children outside the criminal justice
system. However, children in the criminal justice system are often
those same children: between 40—49% of young people in custody
were found to have been in local authority care at some point
according to research commissioned by the Youth Justice Board
in 2006.[109] It is
imperative that these children, often some of the most vulnerable
children in the looked after system, are not disproportionately
penalised by the proposals.
October 2006
105
Chapter 4, para 16. Back
106
See Police and Criminal Evidence Act 1984, Code C, paras 3.13
and 3.15. Back
107
Mental Health Needs and Provision, Youth Justice Board for England
and Wales, 2005. Back
108
Chapter 4, para 58. Back
109
Youth Resettlement: a framework for action, Youth Justice Board
2006. Back
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