Children’s experience in court and in custody

Last week, five boys aged between 12 and 14 were sentenced to two years detention after being found guilty of manslaughter and violent disorder for throwing stones at 67-year-old Ernest Norton, who collapsed and died from heart failure aggravated by a previous medical condition. All five are now seeking leave to appeal against their convictions.

The case of the boys – who were 10 and 12 at the time – provoked a wealth of media attention and comes in a year when more than 50 teenagers have been shot or stabbed to death in England alone, with many perpetrators believed to be from their peer group.

But is it right that children who commit serious crimes are treated like adults by the system? Or should the age of criminal responsibility be raised, from 10 in England, Wales and Northern Ireland, and from eight in Scotland?

A report earlier this year, Debating Youth Justice: From Punishment to Problem Solving? from the Centre for Crime and Justice Studies has urged a rethink on youth justice, suggesting that the age should be raised to 14, 16 or even 18. We gauge the views of those involved in the key stages from police questioning to trial on the suitability of the current system for children, and the need for a change in the age of criminal responsibility.

THE POLICE OFFICER

Children called in for questioning on serious offences are treated much the same as adults. There are a few concessions: they are kept in a detained person’s room rather than a cell (though apart from having no toilet or grille in the door there is little difference between the two), and are given breaks during interviews – which tend not to go on into the night.

Martin Laux, inspector with commitment to children and young people at Hampshire Police, says: “If someone suggested that they were going to start interviewing past 10pm, I would be twitchy about it. I’d want to consider the risks of doing it that late and whether it was better to crack on and get it over with or keep them in custody until the morning.

“It’s a judgement call on the seriousness of the offence, the age of the person and their wishes.”

But apart from these small concessions, Laux admits that the system “grinds on and deals with the task, and isn’t very sympathetic”.

“Any system is flawed and ours is as good as any,” he says.

Legally, children from age 10 must have an appropriate adult during police interviews. This can be a parent, social worker, probation worker or another responsible adult. Often it is the parent, but Laux sounds a note of caution about such an arrangement: “Sometimes they don’t understand their role, which is why it’s better to have a solicitor there as well.”

Although any suspect arrested for interview by the police has the right to have a solicitor present, the Police and Criminal Evidence Act 1984 makes no provision for making a solicitor’s presence mandatory for a young person.

Laux sees this as an oversight. “For serious offences, those who are vulnerable should have a solicitor and my practice has been to encourage this. I strongly believe it works better for both parties: children get a fair crack of the whip and the police aren’t open to allegations of coercion.”

Laux has mixed feelings about the age of criminal responsibility. Although he admits it is “ever so young”, he believes that the more important issue to reconsider is the presumption of doli incapax, which was abolished in the Crime and Disorder Act 1998 as part of the reaction to the James Bulger case. Before this act, children aged between 10 and 13 were presumed not to know the difference between right and wrong and so were incapable of committing a crime as they lacked the necessary intent, unless there was evidence to discredit this.

Laux believes that the other issue to look at, rather than the outcome (the crime), is what precedes it.

“Ten-year-olds are often victims of their family and society and these aspects need to be addressed,” he says. “The longer I work in this field with children and young people, the more I think that the initial intervention needs to be months before conception.

“We need to get the message across [to parents-to-be] about not abusing alcohol and drugs, preparing for a different lifestyle, engaging with agencies, and parenting skills. If things go wrong in the first eight years of life then I think it’s very difficult to reverse the trend.”

As for sentencing, Laux says there is little choice but to imprison children when they have committed such serious crimes. “Young offenders institutions aren’t nice places. There are high levels of suicide, self-harm and bullying rehabilitation isn’t good and recidivism high. But if your dad was murdered, would you want the culprits wandering round your community?”

THE DEFENCE BARRISTER

The defence barrister will meet their young client for the first time either at the magistrates’ court – when any case involving a serious crime is then sent to an adult court – or shortly after committal to crown court.

For some children, this will also be the first time they see their solicitor. And this is where the system is flawed, says Nicholas Valios QC. He agrees with Laux that parents shouldn’t act as appropriate adults during police questioning unless a solicitor is also present.

“Even though parents have to be given guidance notes [on being an appropriate adult] by police, they are normally in no fit state to take these on board,” Valios says. “They are in shock that their child has been accused of something serious like murder, manslaughter or rape, and are wholly unqualified to give their child the type of advice that a solicitor could.

“With just an appropriate adult present a child can be put at a disadvantage because they don’t have the same protection as an adult with a solicitor, particularly when accused of a serious crime.”

Courts are encouraged to make trials less intimidating for child defendants through special measures introduced under the Youth Justice and Criminal Evidence Act 1999, again partly as a consequence of the Bulger case. These measures include the removal of wigs and gowns by the judge and barristers, frequent breaks, and defendants permitted to sit with their parents rather than in the dock.

These measures were used at the Old Bailey during the Norton trial where Valios defended the youngest boy.

“I don’t have a problem with children being tried in an adult court,” he says. “The judge and we as their lawyers are there to protect them from any hostile cross-examination.”

But given the immaturity of some children, Valios thinks it is “unfortunate” that the doli incapax defence was abolished. “Despite the surroundings and the charges they face, some children often don’t appreciate the gravity of the situation in which they find themselves,” he says.

Although Valios believes that children charged with serious crimes should be tried by a judge and jury, that is on the basis of raising the age of criminal responsibility “so that they have far more understanding of rights and wrongs and the consequences of their actions”.

He questions the necessity of criminalising children as young as 10, citing the higher ages of criminal responsibility elsewhere in Europe, ranging from 13 in France, 14 in Germany, Spain and Italy, and 16 in Portugal.

“My view is that it shouldn’t be less than 14,” Valios says. “We must have regard to the fact that they are children. If they have committed a criminal offence they still should be treated as children not criminals.

“In some cases there may have to be a form of custody, but rather than just pure punishment there has to be proper provision for education and rehabilitation.”

THE REMAND MANAGEMENT AND CUSTODY CO-ORDINATOR

West Sussex Youth Offending Team has recently been involved with a 16-year-old on a murder charge and a 17-year-old charged with attempted murder. In both cases, they undertook a serious incident review in accordance with Youth Justice Board guidance.

Following these reviews, the YOT is now considering a local agreement to provide an appropriate adult from the YOT alongside a parent when a young person is charged with a serious offence in the future.

Sara Pordham, the YOT’s remand management and custody co-ordinator, says this is more likely to safeguard children’s and young people’s interests.

“It’s about supporting that young person to cope with the situation and supporting the process. If it’s a serious case, they should have legal advice, so the YOT professional will request a solicitor. We have the right to overrule the young person if they don’t want one.”

Although the YOT tries to offer bail support programmes to as many young people as possible, the decision in West Sussex so far has been not to offer bail support when it comes to serious offences.

“This is a challenge for us because the whole aim of my service is to keep young people in the community,” says Pordham. “But we have to think about public protection and media interest. There may be a lot of inflamed feelings in the community.

“It’s not that we let the media rule the decision we make, but we have to consider whether the family will be harangued, the impact on the local community and whether the young person will be safer in custody. To ignore it would be naïve and possibly place the young person at risk.”

Pordham’s ideal solution for young people if they have to be placed in secure settings is to have small, therapeutic units in local communities providing education and training “so we can get in and do the right work and their families can visit and support them so on release they are more likely to be successful”.

She cites the Carlford Unit at Warren Hill YOI in Suffolk as an example of what is needed. This unit for juveniles who have committed serious offences has a focus on education with a therapeutic base. “We have had some good results there and it would be great if they could all be like that,” she says.

While acknowledging that this would cost a great deal of money, Pordham adds: “Young people are in a developmental stage and they have the capacity to change. But [in current settings] we have to be realistic that the chances of rehabilitation diminish because of the sorts of things they are exposed to in a prison setting.”