Kate Aubrey-Johnson on why children are still being failed by the criminal justice system
I qualified as a barrister in my mid-twenties, having worked as a teacher and a youth worker. I spent most of my first six months ‘on my feet’ at Stratford Youth Court, learning my trade and ‘practising’ on children. Time and again I found myself trying to square the circle that I was representing highly vulnerable defendants and those who have the very most to lose by coming into contact with the criminal justice system.
It troubled me that children were being represented by the least experienced barristers, however well meaning and hard working those advocates might be.
Some 15 years on, I am now a criminal tenant and mediator at Garden Court Chambers and director of the Youth Justice Legal Centre, part of the children’s legal charity Just for Kids Law. However, there are cases from my earliest days in practice that still haunt me. The 16-year-old girl, Tessa, who had been offered a modelling contract in Jamaica and then was forced to swallow 20 wraps of class-A drugs just before getting on the plane home. I recognised she was the victim of trafficking. The court, unfamiliar with hearing submissions on international obligations to protect children from trafficking, dismissed these arguments. Today, thankfully, Tessa would be protected from prosecution by a new defence created by section 45 of the Modern Slavery Act 2015. Back in 2006, she was forced to relive the trauma in a jury trial; was convicted and received a custodial sentence.
Or Yusuf, 15, with a reading age of an 8-year-old, who had been groomed as a drug runner. Captured as a result of hours of police surveillance, Yusuf was prosecuted for possession with intent to supply class-A drugs. He received a custodial sentence. Looking back, it is remarkable that during the days, weeks and months that they were observing Yusuf and a cohort of other children, the police officers did not recognise their duty to consider his welfare and protect him from the huge dangers he was facing as a drug runner. He was not recognised as a victim. The law’s response was to prosecute, rather than safeguard, him.
How much have things now improved? Less than you might think. Lawyers representing children are still not required to undertake any specialist training and, as a result, important arguments and potential defences are overlooked. Children with complex needs and communication difficulties may be represented by lawyers who lack the in-depth knowledge of youth justice law and who have never been trained in how to effectively engage and communicate with children and young people.
These concerns were highlighted by the Taylor Review of the Youth Justice System, in which Charlie Taylor, a child behavioural expert, called for better pay and mandatory training for lawyers representing children.
‘[The current system] is not fair because it means that children often receive poorer legal representation, in the hands of inexperienced junior barristers or solicitors, than equivalent cases heard in the Crown Court. For example, advocates would be paid approximately £500 for a two-day robbery trial in the Youth Court compared with £1,600 were the offender an adult and tried in the Crown Court.
I believe there is a strong case for insisting that all lawyers appearing in the Youth Court are specifically trained. I am also extremely concerned that children, in what are often complex and challenging cases, should be any less well represented in the Youth Court than an adult would be in the Crown Court in a case of equivalent seriousness.
I now have children of my own. They cannot go on school trips or have medical or dental treatment without my consent. Yet a 10 year old who has been arrested is expected to make decisions about whether to ask for a lawyer, having to sign legal aid forms and decide how and what to say in their police interview.’
The expectation that children can effectively participate in criminal proceedings and give instructions to their lawyer mean they are really disadvantaged. They often pass through the justice system confused and bemused by the processes and language used. Many times, I have I heard parents or defendants asking their lawyer to explain what just happened in court, and then complaining that bail conditions will prevent them participating in a football tournament, or that court appearances will interfere with exams or school. Information that their lawyer has failed to ascertain before entering the courtroom.
Much more troubling is that children, impulsive and immature, often ‘plead guilty’ to get it over with. They are heavily incentivised to plead guilty and time and again I hear stories of children who pleaded guilty when they should never have been prosecuted in the first place.
Most of all, children care about whether their lawyer ‘believes them’. Whether their lawyer fights their corner. Lawyers who understand this, establish a relationship of trust with their young clients and therefore glean important background information that often makes the difference between an acquittal and a conviction. And there is good evidence that children who feel they have gone through a fair process are far more likely to comply with sentences and not reoffend. I’m hopeful the Taylor recommendations will raise the status of the youth court and encourage lawyers to specialise and properly train in this important area of work.
YJLC runs specialist youth justice training courses for solicitors and barristers (here)