Children and Young People in Custody (Part 1): Entry into the youth justice system Contents

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7Youth Courts and Sentencing

84.A youth court is a type of Magistrates’ court for people aged between 10 and 17. Youth courts deal with cases such as theft and burglary, anti-social behaviour and drug offences. For serious crimes such as murder or rape, the case starts in the youth court but will be passed on to a Crown Court.105 The Youth Justice Legal Centre summarises how a youth court operates:

“Youth courts are less formal than adult courts. Children are called by their first names and the judge or magistrates will speak directly to the child and may ask questions.

“Youth courts are specially designed to make it easier for children to understand what is happening and feel less intimidated by their surroundings. Cases can be heard by one district judge or three lay magistrates.

“Children under 16 must attend with a parent or guardian. Sixteen and seventeen year olds may attend with a parent, guardian or someone to support them. The parent, guardian or supporting adult should sit next to their child and remain seated throughout the proceedings.

“Most children will go to the youth court unless they have been refused bail by the police and there is no youth court available, in which case they will be taken to the adult magistrates’ court for a decision on bail, and sent from there to the next youth court.”106

Sentencing options for children

85.A number of sentencing options are available to sentencers including community and custodial sentences. However, sentences for children are different from those given to adults.107 The Sentencing Council set out and summarise the sentencing options available to courts; community options available include (but not limited to):

• Referral Order: this requires the offender to attend a youth offender panel (made up of two members of the local community and an advisor from a youth offending team) and agree a contract, containing certain commitments, which will last between three months and a year. The aim is for the offender to make up for the harm caused and address their offending behaviour. A referral order must be imposed for a first-time young offender who has pleaded guilty (unless the court decides that another sentence is justified) and may be imposed in other circumstances.108
• Youth Rehabilitation Order: this is a community sentence which can include one or more of 18 different requirements that the offender must comply with for up to three years. Some examples of the requirements that can be imposed are a curfew, supervision, unpaid work, electronic monitoring, drug treatment, mental health treatment and education requirements.109

86.Children and young people can also receive custodial sentences. The Sentencing Council note that custodial sentences “will only be imposed in the most serious cases. When they are given, they aim to provide training and education and rehabilitate the offender so they don’t reoffend. Sentences can be spent in secure children’s homes, secure training centres and young offender institutions.”110 The main custodial sentence available for children and young people aged between 12–17 is a Detention and Training Order (DTO) - this can be given in the Crown Court and youth court.111 A DTO can last between four months and two years.112 Longer-term detention is available for more serious offences in the Crown Court.113

87.The Ministry of Justice says: “Custody should only be used as a last resort for children, where an offence is so serious that neither a community sentence nor fine can be justified.”114 In their guidelines Overarching Principles - Sentencing Children and Young People, the Sentencing Council state that:

“Domestic and international laws dictate that a custodial sentence should always be a measure of last resort for children and young people and statute provides that a custodial sentence may only be imposed when the offence is so serious that no other sanction is appropriate … . It is also important to avoid “criminalising” children and young people unnecessarily; the primary purpose of the youth justice system is to encourage children and young people to take responsibility for their own actions and promote re-integration into society rather than to punish”.115

88.In the year ending March 2019, there were just over 19,300 occasions where children were sentenced at all courts, which is 78% lower than 10 years ago, with a 16% fall in the latest year.116 Of the 19,300 sentencing occasions of children for all types of offences in all courts, just under 1,300 were sentences to immediate custody (7% of all sentences), with most (76%) of these being Detention and Training Orders. Around 12,800 were community sentences (66% of all sentences), of which 65% were Referral Orders and 34% Youth Rehabilitation Orders.117 For the year ending March 2019, an average of just under 860 children were in custody at any one time - a fall of 70% compared with 10 years ago.118

Use of Remand

89.In spite of that substantial reduction, some question whether custody is always used as a last resort. An increase in the proportion of children being held on remand has been cited as evidence that the principle of last resort is not being adhered to.119

90.For the year ending March 2019, 11,000 remands were given to children, of which the majority (83%) were bail remands, 11% were remands to youth detention accommodation, and 6% were community remands with intervention.120 On average, just over 240 children were remanded in youth custody at any one time that year, some 60% less than 10 years ago.121 However, the figure had increased 12% increase compared with the 2018, and the number had also risen in 2017, after a consistent decrease from 2009 to then.122 Figure 3 shows the average monthly population of children in youth custody on remand from 2009 to 2019.

Figure 3: Average monthly population of children on remand in youth custody, youth secure estate in England and Wales, years ending March 2009 to 2019

Source: Youth Justice Board, Youth Justice Statistics 2018/19123

91.Children remanded in youth custody accounted for over a quarter (28%) of the average custody population in the latest year, an increase from 24% in the previous year.124 This is the highest proportion seen in the last 10 years. Before 2019, the proportion of the total custody population represented by children remanded to youth custody fluctuated between 21% and 26%.125 In the year ending March 2019, the majority (66%) of outcomes for children remanded to youth detention accommodation at some point during court proceedings did not subsequently result in a custodial sentence.126 Of the 66% of outcomes which did not result in a custodial sentence, over half (52%) resulted in a non-custodial sentence with 48% resulting in acquittal.127

92.We sought to understand why the number of children on remand had increased in the latest year for which statistics are available. There appeared to be no single reason. Common themes amongst witness responses included: increase in serious violence; lack of credible community alternatives; and limited time to put together alternative bail packages. Colin Allars, Chief Executive Officer, Youth Justice Board, told us:

“As far as we are able to draw any potential rationale for that, we think there may be a couple of things that are playing into it. One factor is likely to be the rise in serious violence and the attention attached to serious violence. In 2010–11, around 30% of those on remand were there for an offence related to violence against the person. By 2018–19, it was double that. There is clearly something about the serious violence aspect and children being remanded in custody because of that.

“The other thing I find more difficult to put a figure against, but I hear anecdotally, and a lot from youth offending teams in particular, is that youth offending teams are finding it quite difficult to find suitable and appropriate accommodation in the community to provide a community-based alternative to custody during the remand period. That may be a reflection of changes in the availability of local services and money within local authorities.”128

93.Linda Logan, Chair of the Youth Courts Committee, Magistrates’ Association, told us:

“In respect of the remand of young people who then do not go on to get custody, in the area where I sit we did some local work fairly recently, before the pandemic, and one of the issues that we discovered—I think it is probably appropriate across England and Wales—was that, if there was a placement for a young person out of area, the youth offending team very probably would have been able to put together a substantial bail package that would have allayed their fears and the court’s fears, but there is a real difficulty about placements that are not in your own area. There is a massive gap.

“Another issue we identified is that for many young people, when they finally come to court, the Crown Prosecution Service has often downgraded the original charge and, therefore, the new charge is not a charge that would attract a custodial sentence. This is not a cop-out, but, at the end of the day, magistrates and judges can only deal with the information in front of them. If, for example, the youth offending service has a robust intensive supervision and surveillance programme [a high intensity, direct alternative to custody], it is an alternative to custody… but the Magistrates Association youth membership are aware that there are parts of England and Wales that cannot provide an intensive supervision and support programme; therefore, if that is the only alternative to custody, sentencers’ hands are often tied.”129

94.Andy Peaden, Chair, Association of Youth Offending Team Managers also pointed to an issue with the intensive supervision and surveillance programme, stating that: “ISSP is our most resource-intensive programme. It is 25 hours a week for young people. We see it as a valuable package to do good work with young people, but some smaller services find it increasingly difficult to deliver on expectations after the sort of reductions in resource they have experienced over the past few years.”130

95.Helen Berresford, Director of External Engagement at Nacro noted that:

“It is really clear, particularly when two thirds do not go on to receive a custodial sentence, that there is an over-use of remand. There are a number of suggestions as to why that is. Some of it is to do with detention in police custody and the time available to get together an alternative bail package. Some of it is around there not being enough alternative accommodation. Of course, there are decisions about risk that are taken as well in the court system.”131

96.Dr Alexandra Lewis, Chair, Adolescent Forensic Faculty Special Interest Group, Royal College of Psychiatrists told the Committee that children and young people may be remanded to custody pending a psychiatric report, she states that:

“Young people should not be remanded for psychiatric reports. We still see that even now. There are plenty of forensic child and adolescent psychiatrists in the community who are capable of doing that work. There is no need to remand somebody to custody. It is not being suspended in animation; it is actually a toxic environment where you lose your education or placement, your home and connections. All that continuity goes, so it is not a neutral act to remand somebody. Sometimes people think it is a kindness that you are remanding them for a psychiatric assessment. There is no need to send somebody into custody for that.”132

97.The Committee asked the Minister of State for Justice what the Government were doing to avoid remanding children to detention where possible. Lucy Frazer QC MP responded: “we have far too many people on remand in the youth custody estate. We have a significant number in the adult estate as well, and that is why we are undertaking a review at the moment of youth remand, which we will report on in due course.”133 She outlined what work was being conducted as part of the review, noting that: “ … we have looked at the data and figures in relation to the make-up of remand, and we are currently looking at options for how we could reduce that and what measures we could take, whether legislative or otherwise. We are scoping those and will be looking at them more extensively over the coming months.”134

98.We note that the number of children on remand is high and that two thirds of children given a remand to youth detention accommodation did not subsequently receive a custodial sentence. Multiple factors appear to contribute to these numbers: an increase in serious violence; lack of credible community alternatives; and limited amount of time available to put together an alternative bail package may all be contributing factors. We welcome the MOJ’s current review of youth remand, but request more detail on what that review is covering. The Ministry should also set out the timeframe in which they intend to complete the review and publish its results and any action plan.

99.We were concerned to hear reports of children being remanded to custody pending psychiatric reports. Evidence received suggested that this is unnecessary and potentially damaging for a child. We ask the Ministry of Justice to set out how many children have been sent to custody pending a psychiatric report. We recommend that the Ministry set out what steps it is taking to prevent this from happening.

Issues with current sentencing options

100.When sentencing children, the court has a statutory duty to consider the welfare of the child, and the principal aim of the youth justice system, to prevent offending by children and young persons.135 Charlie Taylor, the previous Chair of the Youth Justice Board, in his Review of the Youth Justice System in England and Wales, found that courts were ill equipped to achieve this:

“The youth justice system has a statutory aim to prevent offending, but the criminal courts are not equipped to identify and tackle the issues that contribute to and prolong youth offending… Courts do not have the time or means to direct and supervise the essential work that is needed to help these children break the cycle of offending. Equally, the availability of sentencing options lack the flexibility and rigour to respond to the complex and changing needs of children who offend.

“Magistrates frequently report that they impose a sentence without having a real understanding of the needs of the child, and they rarely know whether it has been effective.”136

101.For most children and young people who have committed an offence for the first time and have pleaded guilty to an imprisonable offence, the only sentencing options currently available are a Referral Order or custodial sentence.137 The Magistrates’ Association has pointed to some limitations with current sentencing powers:

“It is also important that sentencers are given flexible sentencing options to avoid custody where possible. For example, there are current restrictions in place for some cases where the only option is a Referral Order (RO) or custody. As a result of the successful early intervention work to divert CYP from court where possible, it is very common for those appearing in youth court to have a significant history of out of court disposals. However, the current statutory provisions create a binary choice for magistrates between custody and a RO where a CYP pleads guilty. The availability of other disposals would be beneficial in these cases to ensure court have the flexibility to respond appropriately. So, allowing sentencers to consider the appropriateness of a Youth Rehabilitation Order (YRO) would be sensible.”138

102.Linda Logan, Chair of the Youth Courts Committee, Magistrates’ Association, told us: “If it is your first offence and you plead guilty, you could get a referral order or custody, and there is no sentence in between those two points. That needs addressing in my personal opinion. You have a cohort of people who can slip through because of that.”139 Speaking about the binary options for sentencers, Laura Cooper, Just for Kids Law, stated: “One practical issue is that, if a child is pleading guilty to a first offence, there is only the option of a referral order or custodial sentence. That is why it is essential that youth offending services have the resources to put robust alternatives in place for an individual.”140

103.Referral Orders may be appropriate in some circumstances, but there appears to be consensus that more flexible sentencing options would be beneficial. We recommend that the Ministry of Justice review current sentencing options for children with a view to introducing a Youth Rehabilitation Order as a sentencing option for first-time offenders pleading guilty.

104.Other concerns have been raised about alternatives to custody, and the absence of a feedback loop between sentencers and Youth Offending Teams. The Magistrates’ Association state:

“We also believe that providing sentencers with the powers to review community sentences can support rehabilitation, and ensure appropriate interventions are in place. The legislation to allow this in respect of YROs exists in Paragraph 35 of Schedule 1 of the Criminal Justice and Immigration Act 2008 and we call on it to be enacted… Providing a formal process for reviews of YROs would ensure full transparency, producing subsequent positive impacts on procedural fairness, legitimacy and confidence for all parties. It might also be helpful to consider introducing powers for sentencers to review Referral Orders (ROs). Our members have expressed concern that in some areas there are considerable delays in convening RO panels, which is obviously detrimental to the orders themselves.”141

105.When we asked about the lack of feedback loop and sentencer confidence in non-custodial sentence, Phil Bowen, Director, Centre for Justice Innovation, stated that:

“In our research, we have had youth court magistrates say that it is like being a surgeon who operates on a patient and does not get to see whether the patient lives or dies. That does not seem right. We saw some youth offending teams doing a really good job trying to provide youth court magistrates with some sense of that, “Of the cases you have seen over the past three months, this is what has happened,” but there isn’t a feedback loop, and magistrate-led review hearings are a way of binding both the young person and the magistrates into the realities of community supervision.”142

106.Others agreed that giving magistrates a reviewing role could be a welcome development. Dr Pamela Taylor, Chair, Forensic Faculty, Royal College of Psychiatrists, told the Committee that: “The reviewing role is very important, particularly if the courts can have some sort of relationship with the individual and engage them in the process. I think that is an extremely helpful step forward.”143

107.Lucy Frazer QC MP, Minister of State for Justice, said she would take that suggestion away: “Any concepts that allow for maintained control of what is happening and reporting back is something that is worth reviewing and is very interesting”.144 145

108.We agree that the introduction of a feedback loop between the Youth Court (magistrates and district judges) and Youth Offending Teams and the young person may help improve transparency and support rehabilitation. The Ministry of Justice should review current sentencing options, with a view to introducing a feedback loop.

Delays and the timing of court proceedings

109.Delays in the court system can have profound impacts on children and young people. The effect of delays is most evident on those who are turning 18 whilst waiting for trial. If a young person commits a crime at the age of 17, but does not make their first court appearance until they are 18, that young person will be dealt with as an adult throughout the court and sentencing process. Enver Solomon, Chief Executive Officer, Just for Kids Law, told the Committee that:

“Delay impacts on those who turn 18 between the point of entering the criminal justice system and the point of prosecution. It means that they committed an offence as a child, yet they will be dealt with in court as an adult. That raises all kinds of issues about fairness, about being treated appropriately and about the disproportionate outcomes they will have to face as a consequence of turning 18, through no fault of their own, but simply as a result of delay in the system. There needs to be urgent attention focused on these matters.”146

110.The Magistrates’ Association also raise their concerns about system delays, noting that:

“One area of concern that has been raised by our members relates to the impact of current delays in the criminal justice system on CYP specifically. Any delays have a disproportionate impact on CYP due to their age, and dealing with cases expeditiously is a key aim of youth justice. However there is a specific problem with delays between the time of the alleged offence and charging decisions where a CYP turns 18 during the delay, and consequently is dealt with in the adult jurisdiction by the time the case comes to court. This is very concerning, and we believe it should be a priority to resolve this issue.”147

111.Just for Law Kids, in their report ‘Timely Justice: Turning 18’, set out the consequences of turning 18 before appearing at court; young people are likely to be dealt with as adults, meaning that access to the benefits of the youth justice system are lost, for example consequences include: “loss of anonymity, reduced likelihood of diversion, only being eligible for adult sentences, longer supervision periods (heightening the risk of breach), and much longer rehabilitation periods which reduce employment prospects and prevent people moving on with their lives”148

112.The Crown Prosecution Service (CPS), in its Legal Guidance: Youth Offenders states that “All cases involving youth offenders must be dealt with expeditiously and avoid delay, which has at its core the principle that there is little point in conducting a trial for a young offender long after the alleged commission of an offence when the offender will have difficulty in relating the sentence to the offence. To maximise the impact on the youth offender, the case must be dealt with as soon as possible.”149 However, while guidance states that delays must be avoided and cases dealt with expeditiously, recent statistics show that the average number of days taken from offence to completion for youth criminal cases in England and Wales has gone up, from 101 to 154 in the years ending March 2011 and 2019.150 The number of defendants has however decreased over the same period, from 99,881 to 32,601. Although there are fewer young people coming through the system, cases are taking longer to complete.

113.The United Nations Committee on the Rights of the Child state that: “child justice systems should also extend protection to children who were below the age of 18 at the time of the commission of the offence but who turn 18 during the trial or sentencing process.”151 However, a number of children will turn 18 whilst awaiting proceedings to commence, and thus face the prospect of being dealt with as an adult. Specifically, on the extent of the issue, Just for Law Kids note that: “The data available indicates that each year approximately 2%-3% of proven offences are committed by children who turn 18 prior to conviction. This corresponds to 2,500 offences for the twelve months ended March 2017 and 1,400 offences for the twelve months ended March 2018”.152

114.Delays also have significant impact on other parties to court proceedings, Enver Solomon, Chief Executive Officer, Just for Kids Law told the Committee that: “We should not underestimate the impact that delay has on the lives of defendants, victims, families, and all those affected by crime, who get caught up in the criminal justice system.”153

115.Delays have a fundamental impact on all those involved in proceedings. The Ministry of Justice and HMCTS should set out what is being done to specifically address delays in the youth justice system and manage any existing backlogs. The Ministry should include details on what the current capacity is in the youth courts, and what plans exist to increase capacity.

116.Under the principle that punishments should fit crimes, we are concerned that children who turn 18 while waiting for proceedings against them to begin are then dealt with and sentenced as adults. In particular, this is alarming when it happens simply because of delays in bringing cases to court. Defendants may have no control over delays, but may face profoundly different outcomes simply because a birthday has passed. There is significant potential for injustice here, and we believe that proceedings and sentencing should be carried out on the basis of the circumstances prevailing at the time the offence was committed, including the age of the offender. We recommend that the Ministry of Justice legislate to ensure that those who turn 18 while waiting for proceedings against them to begin are automatically dealt with in the youth justice system and sentenced as children.

Youth Experience of Court

117.The youth court system differs from the adult system and is intended to provide a less formal experience. Concerns have been raised, though, that the system does not adequately meet the needs of children and is not fit for purpose. The Children’s Commissioner is concerned that “the youth court system fails to deliver the best possible outcomes for children. Children are often not adequately supported to participate in the process and not enough is done to ensure that their needs are fully understood… our recent visits to youth courts have shown the system continues, at times, to be dysfunctional”.154 Phil Bowen, Director, Centre for Justice Innovation, though children “found the adversarial court process difficult to understand, and they did not always receive the interventions they needed”.155 Nadine Smith, Young Adviser on Criminal Justice told the Committee of her personal experience of going through the court system:

“Speaking from personal experience, I went to the youth court when I was 15. It was a really weird situation because everyone was using big words and nothing much was broken down for anybody; everything was jargon-based. You feel very intimidated. I would not have been putting across the best reflection of myself because I would have been overwhelmed. Time needs to be taken with young people to understand, ideally before the court process, why the offences have happened and what the background was.”156

118.Joshua Kilembeka, Young Adviser on Criminal Justice, told the Committee that: “Young people going through the youth courts need a young advocate, someone who can speak for them, because not a lot of young people understand the jargon. I understand that they have a solicitor, but they need someone who is trauma-informed and can guide them, like a peer navigator or peer worker who really understands them.”157

119.The Royal College of Speech and Language Therapists point out that: “evidence suggests that how a young person presents in court, their attitude and demeanour, influences sentencing decisions. Young people who are inarticulate or lack understanding are especially disadvantaged in court and at risk of inappropriate sentence.”158 The College further noted that defendants with communication difficulties are offered limited support to understand and participate in proceedings, although Section 104 of the Coroners and Justice Act 2009 expanded the Registered Intermediary Scheme to vulnerable defendants with communication difficulties.159

120.Dr Alexandra Lewis, Chair, Adolescent Forensic Faculty Special Interest Group, Royal College of Psychiatrist reiterated this point, telling the Committee that:

“There is a high level of neurodevelopmental disorder and communication disorder among the young people coming in front of the youth courts. If they were witnesses or victims, they would be supported through the criminal justice process and court process by having a registered intermediary, to aid with communication between the court and the young person, and vice versa. As a defendant, you do not have that right, but vulnerability is vulnerability, and it is in everybody’s interests to get the best-quality evidence possible. There needs to be a change so that a vulnerable defendant is treated like a vulnerable witness and has a right to a registered intermediary to support the process.”160

An intermediary is a communication specialist who facilitates two-way communication between a vulnerable person and the other participants in the legal process.161

121.Laura Cooper, Just for Kids Law, told the Committee that:

“… Although youth courts are designed specifically for children, we feel that still not enough is being done to make sure that they are active participants in what is happening to them. There is the sense that it is good enough, but it is not good or great.

A quick example can be demonstrated in a recent Court of Appeal case that Just for Kids Law took around the use of intermediaries. A judge refused the use of an intermediary for a child with communication difficulties, on the basis that it was a lawyers-only case. We were concerned about that, as it seems to infer an acceptance that the child does not have to fully understand everything that is happening to him or her in the trial. That is really concerning.”162

122.Allocation of a Registered Intermediary for a vulnerable defendant is at the discretion of the Judge.163 Both the Royal College of Speech and Language Therapists and the Royal College of Psychiatrists recommend that every child and young person should have the right to access a Registered Intermediary, whether witness, victim or defendant.164

123.Speech, Language and Communication needs are prevalent among sentenced children. In their experimental statistics bulletin, Assessing the needs of sentenced children in the Youth Justice System, the YJB and MoJ found that the proportion of the total children assessed who had a Speech, Language and Communication concerns was 71%.165

124.Children and young people going through the court system have very distinct needs, many having neurodevelopmental and communication needs. They may not fully understand proceedings. Every opportunity must be made to ensure that children are not unfairly disadvantaged; everyone should be able to understand and fully participate in proceedings.

125.We agree with the Royal Colleges’ recommendation that the Registered Intermediary Scheme be made available to vulnerable child defendants. We recommend that the Ministry of Justice set out how it will extend this scheme to ensure that children have access to adequate support. The Ministry should also set out how all children, regardless of specific needs, are supported through the criminal justice process to ensure that they fully understand the process and are able to participate in an informed and full manner.

Magistrate Recruitment

126.Issues have been raised about magistrate expertise in the youth courts. All magistrates who wish to serve in the youth court must first serve in the adult court; once they have gained experience, they can decide to undertake more training to sit in the youth court.166 There is no direct route to becoming a youth magistrate.

127.We asked witnesses whether more specialised child experts should be involved in the youth court system—for example, via direct recruitment to the youth magistracy. Dr Alexandra Lewis, Chair, Adolescent Forensic Faculty Special Interest Group, Royal College of Psychiatrists agreed that direct recruitment to the youth magistracy would be “helpful, if accompanied by appropriate training”.167 Helen Berresford, Director of External Engagement, Nacro stated that: “Courts are an alien environment for many people, particularly for children, and the skills and expertise needed for everyone involved in a court case with a child are pretty specific. It is important to get training and have specific skills around that.”168

128.We asked the Young Advisers on Criminal Justice whether magistrates were the right people to hear youth cases. Joshua Kilembeka said:

“I feel that because magistrates also deal with young adults the terminology is not fit for people with special educational needs, people who are disadvantaged, people with disabilities or people who are dyslexic. It is not really fair. For it to be fair, there should be people who understand young people, so having a peer support worker there would help the young person feel more confident to speak for themselves.169

129.Nadine Smith, Young Adviser on Criminal Justice, told the Committee that:

“I do not think they are the right people to hear youth cases, because the majority of them are of a certain age. I feel like times have changed very much … If magistrates have to be there, a youth advocate instead of a youth offending officer would be perfect to break down everything for them and have that conversation.”170

130.The youth criminal justice system can be complex to navigate for children and young people, particularly as children reach court proceedings. We recommend that direct recruitment to the youth magistracy be introduced, which would allow magistrates to specialise in the youth justice system from the outset. We also recommend that the Ministry of Justice and Her Majesty’s Courts and Tribunal Service consider enabling peer advocates to have an increased role in youth court system.

Covid-19 and the courts

131.We reported recently on Coronavirus (Covid-19): The impact on the courts,171 but many of the issues raised there and, in this chapter, have been exacerbated by the Covid-19 pandemic, particularly in relation to court delays, remand and the court experience.

132.Enver Solomon, Chief Executive Officer, Just for Kids Law, told us: “Our team of lawyers has cases that are being adjourned to dates late in 2021. Imagine if you have to wait that length of time, those months, for your case to come to court. It is not good enough.”172 Linda Logan, Chair of the Youth Court Committee, Magistrates Association said: “there are a lot of youths who have not come to court. One of the things concerning us most is the cohort of young people who will turn 18 and may not get a change to have youth court disposal because many things in the youth court have just been remanded off and off.”173

133.Justin Russell, Chief Inspector of Probation, states: “I have been talking to YOT managers who say that during Covid they have been able to make good arguments to avoid the use of remand, but they are worried about children who were on remand [in custody] before lockdown started, who are now very severely delayed in waiting for trial dates or sentencing.”174 Mr Russell further notes concern about how long remanded cases wait to be heard.175 Linda Logan, Chair of the Youth Court Committee, Magistrates Association, raised concerns about the impact of Covid-19 on those waiting to be sentenced: “There is also a cohort of young people who are in the system waiting to be sentenced. They have either pleaded or been found guilty at some point, and they have not received their sentence as yet. To add to that, as the lockdown has released a little, we are noticing that offending rates are starting to go up already, and we have not cleared the existing backlog.”176 Phil Bowen, Director, Centre for Justice Innovation states:

“We found lots of YOT professionals and youth court magistrates dedicated to doing the best they could in difficult circumstances, but very often they were operating in a difficult operational environment, especially given court closures and the moves towards merging of benches and reductions in funding. Our assumption is that that is only likely to have got worse. As the Committee probably knows, we do not know yet what the backlog is specifically for young people under the age of 18, because the Courts Service does not produce data on backlogs specific to youth courts.”177

134.In Coronavirus (Covid-19): The impact on courts, we recommended that the “Ministry and HMCTS confirm whether this data is collected and if not, why not. If this data is collected, the Ministry and HMCTS should publish this data separately from data relating to the adult court system.”178 We reiterate the importance of data collection here; backlogs have a knock-on effect on the system, and it is imperative that we understand what the current situation looks like if we are to address it going forward.

135.In response to Covid-19, there has been an increased transition to digital court proceedings, via video link for example. Concerns have been raised about the effect remote hearings may have on the court process for children. Justin Russell, Chief Inspector of Probation, notes: “Some of the YOTs I spoke to earlier on in the lockdown felt that they were being squeezed out of the process by not having access to the video links, or by not being allowed into some of the video conferences they were running. I think they prefer to be there in person to do face-to-face assessments in court.”179

136.Dr Pamela Taylor, Chair, Forensic Faculty, Royal College of Psychiatrists, told us that “diagnostically, there are some things we cannot do by video link; there are subtleties we cannot pick up, but we could use video interviewing as a supplement perhaps, and we could extend the amount of work that we do with young people. Once we are no longer driven by circumstances, now that we have improved technology, we should have a radical review as to how we could use it to help in this situation, but not replace the clinical interview.”180 Phil Bowen, Director, Centre for Justice Innovation also raised concern about remote hearings, noting:

“We have real concern about how young victims, witnesses and defendants experience remote hearings. Unlike for family and civil cases, there has been no review of the evidence around the use of remote hearings during Covid-19 for the criminal courts. Our worry is that remote hearings could become standard before we know for whom they work and for whom they do not work in our criminal courts. In my view, just as with the right to jury trial, we cannot let the necessary steps that we have had to take during the Covid-19 pandemic determine what the future of our justice system looks like.”181

137.In our report Coronavirus (COVID-19): The impact on courts, we raised our concerns that “as yet there has been no judicially or government commissioned, review of the increased use of remote hearings in criminal cases in either the magistrates’ courts of the Crown Court during the pandemic”.182 We recommended that “the Ministry of Justice commission and urgent review that evaluates the effect Covid-19 measures in the magistrates’ courts and the Crown Court”.183

138.The Covid-19 pandemic has affected every area of the criminal justice system, including youth justice. The Committee appreciate that Covid-19 has presented the youth courts with numerous challenges. Delays affect all participants in court proceedings; defendants awaiting trial will spend longer in custody on remand or on bail in the community, and victims will wait longer for justice. We invite the Ministry of Justice to set out the number of outstanding cases in the youth courts and what steps are being taken to ensure that cases are dealt with expeditiously.

139.Covid-19 has necessitated a shift to remote hearings, but we have heard concerns from witnesses about their use. We accept that this is a necessary interim measure in response to the pandemic, but the Ministry of Justice should set out what work is being done to ensure that all parties to a proceeding are adequately supported during remote hearings. We reiterate our previous recommendation, that the Ministry should urgently commission a review that evaluates the effect of Covid-19 measures in the magistrates’ courts and the Crown Court. This review should also consider the specific effect Covid-19 measures have had on access to justice and fairness of outcomes for children and young people.