Time for family values in criminal courts?
Why does the treatment of young people in the family courts differ from those who are facing prosecution? Kate Aubrey-Johnson and Jennifer Twite call for higher standards across the board to ensure all children are properly protected.
Sir James Munby, president of the Family Division, has said that, so far as the treatment of vulnerable people giving evidence is concerned, ‘the family system lags woefully behind the criminal justice system’. As a result of such concerns, the family courts are making changes to protect children and other vulnerable witnesses, taking on board experience gained in the criminal justice system. Such cross-fertilisation is welcome: but is it now time for criminal practitioners to learn lessons from their family colleagues?
Protecting the vulnerable?
Over the past two decades, the criminal justice system has introduced a raft of changes, including special measures (Youth Justice and Criminal Evidence Act 1999 ss23–30) and criminal practice directions (Criminal Practice Directions 2015  EWCA Crim 1567 CPD I General matters 3G: Vulnerable defendants) in relation to intermediaries, other adaptations and communication aids to meet the needs of vulnerable witnesses and defendants. The Advocate’s Gateway (hosted by the Advocacy Training Council) provides practical toolkits for practitioners on vulnerable witnesses and defendants.
These special measures are intended to protect the most vulnerable in the criminal justice system, but when introduced, they were aimed only at victims and witnesses, with vulnerable defendants excluded. The special measures enacted in the Youth Justice and Criminal Evidence Act 1999 initially only included witnesses (and specifically excluded defendants).
It has taken legal challenges to achieve equal protections for defendants, such as C v Sevenoaks Youth Court  EWHC 3088 (Admin), 3 November 2009, in which the High Court ruled that the criminal courts have an inherent power to modify their procedures to provide intermediaries for defendants, and indeed a duty to do so to ensure defendants can effectively participate.
The courts have now established that defendants are entitled to the same support as witnesses to give their best evidence and participate effectively in the trial process, eg using live video link (R (S) v Waltham Forest Youth Court and others  EWHC 715 (Admin), 31 March 2004) or a registered intermediary (R (OP) v Secretary of State for Justice  EWHC 1944 (Admin), 13 June 2014).
Many criminal judges and practitioners are unfamiliar with arguments based on the UN Convention on the Rights of the Child best interests principle. So, as criminal defence lawyers, we often look across at our family law colleagues and hold their court up as a best practice model of a child-centred, child rights approach, where children are treated as children.
Theory but not practice
In principle, the criminal justice system offers a good practice model for vulnerable witnesses and defendants. The increased profile and availability of registered (and non-registered) intermediaries has been highlighted as an important step forward. Sadly, the use of intermediaries is still very patchy in criminal courts, and modifications to the trial process and special measures are underused. The experience of victims and witnesses in criminal cases is often that the process of giving evidence is extremely traumatic. It can still be difficult to persuade judges to make modifications to protect vulnerable defendants. The reasons for this gulf between theory and practice are the lack of training and, in the case of child witnesses and defendants, a failure of advocates to adopt a less adversarial approach.
In September 2014, the lord chancellor announced that mandatory training would be introduced for all advocates in sexual offence cases in the criminal courts; it is likely that there will eventually be a similar requirement in the family court. While this was welcomed by many, it falls far short of what is needed to ensure the vulnerable are protected in criminal cases. Children make up by far the largest group of vulnerable witnesses and defendants in the criminal justice system. However, despite repeated recommendations, there is no requirement for advocates working in the youth justice system to undertake any specialist training or accreditation. Studies have shown that children leaving court still comment on how difficult they found it to understand the proceedings. As one young person put it: ‘They used lots of long words you’ve never heard before … you just have to try and put two and two together.’
How the criminal courts are failing children
A 14-year old with ADHD was left to sit at the back of court behind glass panels, away from his family and next to security guards, for eight weeks. He was unable to communicate with any of his legal team during the court proceedings and had to wait until the lunch break each day to ask them what was happening. He was criticised by the judge for misbehaving in the dock.
A 17-year old with learning difficulties and ADHD was in court for a trial starting at 10 am, which ran until 7.30 pm. While the bench deliberated on the verdict, she became so agitated that she tried to hang herself in the cells while waiting for the decision. Source: Just for Kids Law
Adapting court hearings to make them more child-focused for youth justice cases is also about allowing the child to participate in the proceedings. The family courts, unburdened from political unease about treating child defendants as children, can often better allow for the difficulties that children face during legal proceedings. This means that in public law family cases, a child has their own lawyer as well as a children’s guardian (formerly a guardian ad litem) who is able to assist the court in considering the child’s best interests (Children Act 1989 s41). The children’s guardian instructs the solicitor based on the wishes and feelings of the child concerned (Children Act 1989 s1(3)(a); Family Procedure Rules 2010 SI No 2955 r16.2). The FPR 2010 also provide for the circumstances where a child’s guardian determines that the child is capable of instructing the solicitor directly rather than through them (FPR 2010 r16.21).1See further Re H (A Minor) (Care Proceedings: Child’s Wishes)  1 FLR 440.
By contrast, in the criminal courts, from the age of 10, children are presumed able to effectively participate in criminal proceedings and there is no statutory definition of competency in criminal cases. Instead, lawyers have to persuade courts that child defendants are unfit to plead or unable to effectively participate. There is an expectation children can and will make decisions for themselves. These are decisions that could have life-changing consequences, eg whether to answer questions at the police station, how to plead and whether to give evidence at trial. Because of the strict rules of legal privilege, children often make these decisions with their lawyer, without a parent or guardian present to offer them guidance or emotional support.
The family experience
Earlier this year, the Vulnerable Witnesses and Children Working Group delivered its report in which it highlighted the ways in which the criminal justice system allows very young children to be supported when giving evidence to court, and the various measures, such as the criminal practice direction for vulnerable defendants. Until 2010, there was a presumption against young children giving evidence in the family courts, a rule designed to protect them. This was successfully challenged in the case of Re W (Children)  UKSC 12, 3 March 2010, reflecting the fact that, in recent years, family courts have grappled with the need to balance the desire of young children to have their voices heard in proceedings with the need to protect their best interests. Family courts have been criticised because, unlike in criminal courts, there is no statutory footing for ‘special measures’ for vulnerable witnesses. As things stand, a family judge would be reliant on the inherent jurisdiction to order special measures for a child witness. The working group’s report highlights the advantages of hearing direct evidence from children, and suggests that the ‘Criminal Practice Directions can provide the basis for practice directions in the Family Court’ (para 7).
‘They used lots of long words you’ve never heard before. You just have to try and put two and two together.’
Family lawyers representing children are specialists: there is a Children’s Law Panel, which is a Law Society accreditation scheme that ensures children are represented by solicitors who have undertaken specialist training, have completed an assessment and agree to abide by a code of practice. This training embeds the concept of children’s welfare and best interests at the heart of their approach to family law. By contrast, children in criminal cases are represented by solicitors or barristers who have not been required to undergo specialist training and because the youth court is perceived as dealing with the least serious cases and least likely to impose custodial sentences, it is often the most junior and inexperienced practitioners representing them.
The comparison is stark. It is often the same children who will find themselves before the criminal court as defendants (or victims) as will be involved in family care proceedings. According to research by the Prison Reform Trust and the National Children’s Bureau (Rachel Blades, Di Hart, Joanna Lea, Natasha Willmott, Care – a stepping stone to custody, PRT, December 2011), ‘[c]hildren in care are more than twice as likely to end up in trouble with the law than other children. Looked after children account for more than a third of children in custody, but less than 1 in a 100 of the general population’ (back cover).
A children’s law panel for criminal lawyers?
Children are the most vulnerable defendants in the criminal justice system and are more likely than not to have significant difficulties with communication.2Nathan Hughes, Huw Williams, Prathiba Chitsabesan, Rebecca Davies, Luke Mounce, Nobody made the connection: The prevalence of neurodisability in young people who offend, Children’s Commissioner for England, October 2012, p9.
Surely criminal lawyers should be learning from their family colleagues about the need for specialist training and accreditation? Knowledge and understanding of the specific vulnerabilities of child defendants, and of youth justice law, can mean the difference between avoiding a criminal conviction or ending up in prison.
While magistrates and district judges who sit in the youth court must have special training, the same is not required of Crown Court judges, who try children for the most serious offences. Despite criticisms in V v UK App No 24888/94, 16 December 1999 and SC v UK App No 60958/00, 15 June 2004, Crown Courts are still intimidating places for many young people. Practitioners all too rarely invite the court to follow the practice direction for vulnerable defendants. While many judges are sympathetic to such applications, it is not unusual for the application to be refused, say, because the defendant is 17, and so nearly an adult, or because ‘if he is capable of robbery then surely he can cope with sitting alone in a dock’. In the worst cases, a request may be met with simple derision: ‘Is he really intimidated by us all wearing wigs?’ ■