Sentencing 18 year-olds
They may not yet be fully mature or appreciative of the effects of their offending
Earlier this year, the ICCA commented on Clarke, Andrews & Thompson  EWCA Crim 185. Now, in a recent Court of Appeal decision in R v Eniola Balogun  EWCA Crim 2933, the sentence of an 18-year old young man has been reduced on the basis that insufficient weight was given to his youth, his immaturity and his lack of appreciation of the seriousness of his offending and the harm it caused. It was accepted that the appellant had caused severe and lasting harm to his young victims.
The appellant was convicted of three offences of rape and pleaded guilty to four further offences of rape and one offence of distributing offensive photographs of a child. The offences were committed during a five month period in 2016 when the appellant was aged between 18 years 4 months and 18 years 9 months. His victims were aged between 13 and 16. His behaviour was described as a ‘campaign of rape’.
At first instance, prosecuting counsel provided the sentencing judge with a sentencing note which said of the appellant, "…he is still relatively young and lacks emotional development or maturity".
Balogun was eventually sentenced, for one of the rape offences, to an extended determinate sentence of 29 years, (under section 226A of the Criminal Justice Act 2003), comprising a custodial term of 21 years' detention and an extension period of 8 years. Concurrent standard determinate sentences totalling 10 years' detention were imposed for the other offences.
On appeal, no challenge was made to the finding of dangerousness or to the decision of the court below that an extended determinate sentence was appropriate. The principal issue in the appeal was as to the length of the custodial term.
The appellate court considered Clarke, Andrews & Thompson  EWCA Crim 185 where the Lord Chief Justice said:
“Reaching the age of 18 has many legal consequences, but it does not present a cliff edge for the purposes of sentencing.”
The CA also considered R v Peters  2 Cr App R(S) 101, in which case the Appeal Court said at para. 11:
" Although the passage of an eighteenth or twenty- first birthday represents a significant moment in the life of each individual, it does not necessarily tell us very much about the individual's true level of maturity, insight and understanding. These levels are not postponed until nor suddenly accelerated by an eighteenth or twenty-first birthday. Therefore although the normal starting point is governed by the defendant's age, when assessing his culpability, the sentencing judge should reflect on and make allowances, as appropriate upwards or downwards, for the level of the offender's maturity."
The CA decided that the fact that the appellant had attained the age of 18 before he committed the offences did not of itself mean that the factors relevant to the sentencing of a young offender had necessarily ceased to have any relevance. ‘He had not been invested overnight with all the understanding and self-control of a fully mature adult’.
The trial judge had sentenced Balogun to a total sentence which was considerably longer than his life thus far. The CA disagreed that the trial judge’s notional starting point of 24 years' custody after trial gave sufficient weight the features of youth, comparative immaturity and lack of appreciation of the seriousness of the offending or of the harm which the appellant was causing.
The CA held that they should have regard to the principle of totality. They gave credit, as had the trial judge, for the belated guilty pleas. It was acknowledged that the appellant had a broken family and a dysfunctional existence.
The CA held that the appropriate total sentence, taking into account all those considerations, was a custodial term of 18 years. They quashed the extended sentence imposed below and substituted for it an extended sentence, comprising of a custodial term of 18 years' detention in a young offender institution and an extension period of 8 years, a reduction of 3 years.
The decision in Balogun confirms the approach approved in Clarke that practitioners representing young adults should not be afraid to rely on the Sentencing Council's Guide to Sexual offences – Sentencing children and young people alongside the definitive guideline for Sentencing children and young people – overarching principles. This is especially so in the case of someone who is barely an adult and who falls to be sentenced for serious offences.
Landmark Ruling in Supreme Court on disclosure of childhood cautions and multiple convictions
On Wednesday 30th January 2019, the Supreme Court upheld a declaration of incompatibility under the Human Rights Act 1998.
In this landmark judgment in R (on the application of P, G and W) (Respondents) v Secretary of State for the Home Department and another (Appellants)  UKSC 3 the court found, in part, that the “filtering rules” which govern when previous offences have to be disclosed on an enhanced criminal records check are a disproportionate interference with an individual’s Article 8 rights.
The ICCA has worked closely on youth justice materials with the Youth Justice Legal Centre, an arm of Just for Kids Law, who successfully brought the case on behalf of G. He had two youth reprimands from 2006 for incidents that occurred when he was 11 and 12. He was arrested for sexually assaulting two younger boys; sexual touching and attempted anal intercourse. It was abundantly clear at the time that the activity was no more than sexual curiosity and experimentation on the part of all three children involved. G was not prosecuted. Five years later, his work activities required him to apply for an enhanced DBS check. The police proposed to disclose the reprimand, with an account of the (extensive) mitigation. G withdrew the application and lost his job.
The charity, Unlock, intervened and their response to the judgment can be found here.
Unlock reports that over the past 5 years, more than 1 million youth criminal records were disclosed on standard or enhanced criminal record checks relating to offences dating back more than 30 years. Under the current system of disclosure, many people may have been deterred from applying for employment for fear of the disclosure of stale offending which is often viewed disproportionately by potential employers. There have long been calls for reform.
The filtering rules that are currently in place stem from the case of R (T) v Chief Constable of Greater Manchester Police  UKSC 35. Before this case, the situation was that every caution or conviction was disclosed in an enhanced criminal record check. In R v T the Supreme Court held this extent of disclosure to be unlawful, as a result of which, the government introduced the current filtering rules which mean that cautions for certain offences are filtered, and single convictions for certain offences that did not result in imprisonment are also filtered. Everything else is disclosable for the whole of someone’s life.
It is those revised filtering rules, introduced after R v T, that were challenged in the Supreme Court which found that the current regime is disproportionate in two important areas;
1. The multiple conviction rule leads to ‘arbitrary results’. The aim of the rule remains legitimate, i.e. that repeat offending should lead to disclosure, However, the practical effect of the rule means that disclosure is still made in instances where there was a single incident leading to more than one conviction.
2. The judgment, at para 64, states that youth reprimands (replaced by youth cautions under Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012) are a rehabilitative and a diversionary measure. The point was made that no consent is needed to receive one, making it disproportionate for them to be disclosed in criminal record checks.
Enver Solomon, CEO of JFKL said,
“There is now an overwhelming view shared by the higher courts and MPs that the government should act immediately to ensure no child who is given a caution ends up with a criminal record that stigmatises them for life. The government should also now conduct a wide-ranging review of the entire criminal records disclosure regime for children and young people.”
It remains to be seen what Parliament does to implement the necessary changes to the filtering rules and to give effect to the Supreme Court’s ruling.
Guidance for Advocates
Advocates need to be alert to the impact that a diversionary measure such as a youth caution, often adopted in fear and without due consideration, can have on a child’s life. To put things into context, government figures show that 13,533 youth cautions were issued in 2016/17.
A 2017 enquiry by the House of Commons Justice Select Committee on disclosure of youth criminal records found that the aim of the youth justice system was being “undermined” by the system for disclosure of youth criminal records “which instead works to prevent children from moving on from their past and creates a barrier to rehabilitation.”
Reaching maturity has many legal consequences, but it does not present a cliff-edge for the purposes of sentencing
The offending in this matter was extremely serious and included kidnapping. The impact on the victim and his family was significant. It occurred in early 2017.
For contextual purposes, it is helpful to set out the age of the defendants:
- Clarke was born on 11th December 1998 and so was just 18 at the time of the offending.
- Thompson was born on 26th August 1997 and so was 19.
- Andrews was born on 3rd December 1999 and so was 17 at the time and the youngest of the three.
The three defendants pleaded guilty to all the offences in circumstances which entitled them to a full discount of one-third. Andrews had no previous convictions, cautions or reprimands.
Given their ages at the time of the sentencing exercise by HHJ Goddard QC in Manchester, Clarke and Thomson received sentences of 7 years detention in a young offender institution. Andrews was sentenced to 5 years and 6 months detention, pursuant to section 91 of the Powers of Criminal Courts (Sentencing) Act 2000.
Had the defendants been mature adults, it is clear that their sentences would have been significantly longer. There was explicit reference to the guideline relating to young offenders in the course of argument before the sentencing judge who took a long time to listen to all the material presented on their behalf. All three defendants came from the most extreme and desperately sad familial backgrounds.
The Court of Appeal delivered an important judgment in this case after the Attorney-General applied for leave pursuant to s.36 of the Criminal Justice Act 1988 to refer their sentences as unduly lenient suggesting that only Andrews, the youngest and still 17 at the time of offending, should have received a discount by virtue of his ‘youth’.
In a second application, Andrews appealed against his sentence on the ground it was manifestly excessive, relying on similar arguments. In the course of oral submissions on behalf of the Attorney General, it was accepted that there was no stark cut-off point that applies in sentencing an offender aged 18. Counsel for Andrews accepted the same proposition.
The Lord Chief Justice made these important observations:
“Reaching the age of 18 has many legal consequences, but it does not present a cliff edge for the purposes of sentencing. So much has long been clear. The discussion in R v Peters  EWCA Crim 605,  2 Cr App R(S) 101 is an example of its application: See paras -. Full maturity and all the attributes of adulthood are not magically conferred on young people on their 18th birthdays. Experience of life reflected in scientific research (e.g. The Age of Adolescence: thelancet.com/child-adolescent; 17 January 2018) is that young people continue to mature, albeit at different rates, for some time beyond their 18th birthdays. The youth and maturity of an offender will be factors that inform any sentencing decision, even if an offender has passed his or her 18th birthday. The ages of these offenders illustrate the point. The youth and immaturity of Clarke and Thompson were appropriate factors for the judge to take into account in these cases event though both were over 18 when they offended. It is apparent that the Judge did so, not only in the case of Andrews.
Leave was refused both to appeal and for leave to refer as unduly lenient. The CA rejected the AG’s submission that the circumstances underpinning this case should have led to the conclusion that any notional reduction in the sentences to reflect the youth of Andrews, or the relative youth of both Clarke and Thompson, should have been minimal. The LCJ said that, “such a feature may be a potent factor in determining the eventual sentence. It is quite clear from the totality of the hearing and then the sentencing remarks that this experienced judge was sensitive to the questions of youth and immaturity”.
Advice for Advocates
This is a pioneering judgment where the LCJ acknowledges that young adults should be treated differently within the criminal justice system as a result of their continuing lack of maturity and culpability. In spite of the extreme seriousness of the offending in this matter, it was right and proper to take an approach that was ‘child centred’ leaving scope for rehabilitation of these a number of troubled young adults
Specialist child advocates can make a difference to unnecessary remands
In December 2018, the charity, Transform Justice, published a damning report titled, ‘Path of little resistance: is pre-trial detention of children really a last resort?’ The report addresses the alarming increase of children on remand and makes 17 recommendations for improvement by professional adults dealing with children in the criminal justice system.
The ICCA recommends that: All advocates, whether prosecuting or representing children who are facing a consideration of bail need to fully understand the legal framework which governs this area of practice and be equipped to make informed, careful and mindful decisions which would lead to better outcomes for the majority of remanded children and young people.
The UK has signed up to the principle that children should only be detained as a last resort (UNCRC Article 37). In 2012, we introduced legislation (The LASPO Act) which was designed to reduce the number of children remanded to custody. Among other things, the Act set out:
- more stringent criteria for the use of custodial remand (officially remand to youth detention accommodation),
- the elimination of an anomaly whereby sixteen and seventeen-year olds were treated differently to other children, and
- the delegation of remand budgets to local authorities.
There was some improvement initially but, since 2016, the picture has become more disturbing. A quarter of the entire the prison population is now made up of children and young people compared to one-fifth in 2012. In June 2018, 30% of children in custody were on remand; the highest monthly figure for a decade. Clearly, something is not working.
Perhaps what is most alarming about the Transform Justice report’s findings is that ‘two thirds of children who are remanded into custody do not go on to receive a prison sentence (29% are acquitted and 36% receive a non-custodial sentence) and 180 children were remanded to custody for 7 days or less in the course of a single year’. These findings illustrate a system which is failing and which is in direct contravention of children's rights.
To make matters much worse, the proportion of BAME children among that increased number of children on remand is 54%. This figure is higher than the proportion of BAME children who are arrested by police – 23%, higher than the number of BAME children in custody following sentence – 45% and significantly higher than the general 10 -17 population - 18%.
What can prosecutors do better?
Where there is a recommendation by police to refuse bail, this should always be carefully considered by a specialist youth prosecutor. In practice, the Transform Justice report finds that this does not always happen and prosecutors do not always fully understand the bail and remand framework for children and young people which is different to that for adults. The ICCA have produced guidance on this area of practice.
The ICCA highlighted in October 2018 a new CPS Code:
Under the new Code, prosecutors were reminded of their obligations under the UN 1989 Convention on the Rights of the Child and the aim of the youth justice system to prevent offending. With this in mind, prosecutors must consider maturity as well as chronological age.
The new Code for Prosecutors reinforces the principle that, the younger the suspect, the less likely a prosecution is appropriate. The Code points out that there will still be circumstances, notwithstanding age or maturity, where the public interest requires a prosecution including where the offence is serious; where the suspect has a bad record of offending and there are no suitable alternatives to prosecution and where an out of court disposal is not available.
There is still too little understanding of the defence under the Modern Slavery Act 2015 available to exploited children. It should not be a question of ‘charge first’ and look at whether there has been exploitation later. The ICCA has produced guidance on child trafficking and has interviewed an expert from ECPAT.
Child defence advocates
Too many applications for remand of a child go unopposed. Sometimes, this is due to the fact that there has not been time to arrange a bail package. This should not be met with a child’s advocate conceding that remand is the only option. Advocates should argue for an adjournment or that the refusal of bail criteria has not been met.
Too often a defence advocate will regard the option of making a second bail application as a waste of time unless there is a change to bail package information. Again, this should not be the default position; every child is entitled to bail, a right which continues up to sentencing. Advocates are encouraged to work closely with the YOT’s to come up with the most persuasive bail package.
The Transform Justice Report recommends that ‘the training and development of defence and prosecution advocates should focus on improving their knowledge and skills, and their understanding of how to work best with YOTs. This should be supported by strong guidance on the remand criteria, what can and should be done to challenge refusal of bail and what the different responsibilities are’.
The following is a list of factors taken from the report that can conspire to deprive a child or young person of their right to bail:
- Too many children are still being detained by the police overnight, which results in them being taken before an adult court where they are less likely to be treated as children.
- Often a case will be presented in court before there has been a chance for any professional to prepare properly for the hearing. This means the court has no information and sometimes no bail package is offered. Too little regard is had to what happens to a child who, even for a short period, for reasons of time mismanagement and convenience, ends up in custody.
- There is too little understanding of the RLAA (remand to local authority accommodation) such that remands are made without RLAA being offered.
- Instead of the priority being the welfare of the child, it is more often the case that risk aversion dominates the decision to remand. It can rarely be in the interests of a child to spend a night in police cells, followed by a spell in custody with the prospect of being moved to live some distance from home and community until their trial takes place. It is clear that there is little correlation between the number of children remanded and those who end up being given a custodial sentence. This suggests strongly that the criteria are not carefully considered.
- Advocates must not simply accept the default position that children’s’ services are over-stretched. Short remands can be tremendously damaging.
Advocates are urged to read the recommendations in the Transform Justice report. The CBA’s Monday message from 8th January 2019 sets out that the CBA has a working group looking at ways of progressing the issues of serious concern raised by the Lammy Review. The message refers to the new Transform Justice report and highlights how current arrangements can cause serious damage to young lives.
Sentencing of young adults - Guidance
Advocates should be mindful that a sentencing exercise in serious cases involving young adults, crossing from late teens to adulthood, should not be a simplistic or arithmetical approach. In certain circumstances, a departure from what seems likely to attract an inevitable custodial sentence, can be justified. The case of R v JT  EWCA Crim 1942 shows that a more individualistic approach is to be encouraged.
The ICCA has today uploaded an addendum to its materials on Child Trafficking and County Lines – this information should be read carefully when considering what if any action to take when representing or prosecuting children who are at risk of ongoing harm if information relating to the circumstances of their arrest or offending is not disclosed. The guidance asks you to consider both confidential information and information obtained under legal professional privilege.
Cases such as these are becoming more common. More than 1,000 county lines are believed to exist across Britain and British people are now the largest group of modern slaves identified by the authorities. A total of 5,145 child victims were referred into the system last year, an increase of 35 per cent on the year before. Numbers are not expected to fall. The largest group was British citizens followed by Albanian and Vietnamese nationals.
Child Trafficking - Updated Guidance
The Home Office has issued this updated guidance in relation to trafficked children and vulnerable adults. It comes in the wake of recent media coverage and an alarming increase of this type of activity. In September 2018, it was reported that British children make up the biggest group of suspected victims, with 677 children from the UK referred to the authorities.
This type of criminality involves drugs, violence and sexual exploitation with children as young as 12 years old being targeted. In September, in Kirklees, 31 suspects were charged with historic offences of rape and trafficking. Their victims were aged between 12 and 18 when the offending occurred.
In Wales, 12 year-old children are known to have been trafficked to deliver cannabis along county lines. They were targeted via their social media accounts.
Prosecution or non-punishment
In many cases, and in spite of CPS guidance to carefully consider prosecution where the offending is integral to activities involving trafficking, there is still an overwhelming tendency to prosecute children. In spite of an available defence under s.45 of the Modern Slavery Act for children who are compelled to commit criminal offences, a UNICEF report has found that there are:
- serious shortcomings in the implementation of the ‘non-punishment’ principle in the UK, including few safeguards against arrest or prosecution at the earliest stages of the criminal justice process;
- very low levels of awareness among prosecutors, police, defence solicitors and frontline practitioners of the non-punishment protections for children that are in place; and
- little monitoring of the use of the presumption against prosecution or the statutory defence across the UK
The new Victims Strategy address the issue with a commitment to ‘ensure that services provide victims with a quality service, based on their needs’. It vows to:
- Improve support for victims of modern slavery and exploitation.
- Create new places of safety for victims, enforce standards for safe houses, and improve the support provided for victims as they return to the community.
- Facilitate access specialist support for victims quickly with a view to making them less vulnerable to future exploitation.
- Making available an extra £2m for Independent Child Trafficking Advocates who are specialist professionals to support children to navigate the complex systems of social care, immigration and criminal justice.
- There will be an independent review of Modern Slavery Act 2015 in an effort to ensure that legislation keeps in step with this type of crime
This report by ECPAT provides an erudite snapshot of the crisis surrounding child trafficking in 2018 and deals in part with the possible consequences of the UK leaving the EU.
Youth Justice Practitioners are referred to the ICCA’s guidance on Child Trafficking and County Lines for more information about identifying trafficked children and what to do in those circumstances.
Two teenage boys sentenced to 12 and 10 years for conspiracy to murder are named after a reporting restriction was lifted
On 20th July 2018, Mrs Justice Cheema-Grubb DBE sentenced Thomas Wyllie and Alex Bolland at Leeds Crown Court after a trial where both had denied conspiracy to murder. Wyllie was also convicted of unlawful wounding having carved his initials in his then girlfriend’s back.
Both boys were 14 at the time of the offences and 15 at the time of sentencing. They had planned to carry out a ‘Columbine-type’ attack on teachers and pupils at their school in North Yorkshire; their actions designed to mirror the massacre by two teenage boys at Columbine School in Colorado in 1999.
Wyllie, in particular, hero-worshipped the American teenagers who ultimately killed themselves after the Columbine shootings. It would seem that Wyllie was the main protagonist taking the role of Eric Harris whilst Bolland was his ‘wing-man’ in the role of Dylan Klebold. The British pair’s friendship had a toxicity to it which has tragic similarities to the relationship between the teenagers who killed Angela Wrightson and the young couple, Kim Edwards and Lucas Markham who killed Edward’s mother and sister.
Wyllie and Bolland’s friendship was addressed at the sentencing hearing – ‘rather than be positive influences on each other, you entered into a noxious relationship which pulled each other down further into a selfish obsession with punishing others for the wrongs you felt had been perpetrated against you.
During sentencing the two were told that, the conspiracy to murder ‘was not wishful thinking or a fantasy. It was a real plot.’
Tragically for Wyllie’s troubled teenage girlfriend, she offered him the potential to access, via her father, a collection of guns and ammunition. The girl managed to resist his coercion to allow him to access them via a locked gun cabinet but she was unable to resist allowing him to carve in her back his initials.
Wyllie and Bolland drew up a list of targets at their school including individuals against whom they each bore a grudge. Neither was particularly discreet about their plans and one girl, to whom Bolland bragged of the initiative, told a teacher and a parent. At this stage Bolland confessed everything whilst Wyllie maintained there was no truth in the allegation. Whilst it’s clear that Bolland did confess he was described during his confession as ‘dispassionate’ with a ‘dead-pan delivery’.
Wyllie continued after this intervention to make plans to carry out the massacre.
Mrs Justice Cheema-Grubb DBE said that she had borne in mind that neither boy got as far as creating a viable improvised explosive device nor did they actually access any firearms. tTere was a rucksack containing items for use in preparation for carrying out an attack and creating some form of weapon which was regarded as being relevant to the conspiracy. It confirmed ‘state of mind’ and demonstrated that the intention to perpetrate a serious criminal offence causing harm to others was not deflected by the discovery of their plan to attack the school. It was relevant to the issue of dangerousness in sentencing.
The judge set out the following aggravating features:
- They intended to kill many victims who were either children at school or teachers at work: some of these had been specifically targeted for revenge.
- They planned to use firearms and improvised explosive devices.
- The attack on the school was intended to cause terror on the scale of school shootings in the USA.
- Their planning was carried out over months and demonstrated a substantial degree of premeditation.
- Wyllie persisted in the planning even after discovery and the intervention of the police on 28th September 2017.
In sentencing the pair, the judge held Wyllie more culpable and gave him a longer sentence to reflect his dominance. He was described as a boy of considerable intelligence and potential who had experienced low self-esteem and homicidal thoughts. Initial phases in custody had continued to highlight issues managing his emotions. The judge concluded he was a dangerous offender and she imposed an extended sentence pursuant to section 226B (1) Criminal Justice Act 2003. He was handed a sentence of 12 years custody with an extended licence period of 5 years for the conspiracy count.
Bolland was dealt with as a "fully engaged conspirator from at least May 2017" but not the prime mover. He was found to be intelligent but not suggestible. He had shown signs of adapting quickly to his place of detention. The judge was persuaded on balance that Bolland did present some future risk. She passed a sentence under section 91 (1) Powers of the Criminal Courts (Sentencing) Act 2000. She was not able to limit the period to one that he could serve entirely at a secure children’s home. She passed a sentence of 10 years detention.
After sentencing, the judge lifted reporting restrictions and agreed to allow the boys to be named. She reportedly rejected representations from both the prosecution and the defence, who argued that naming the boys would harm their rehabilitation. She said the need for open justice outweighed this consideration.
Revision considered to Age of Criminal Responsibility
The Parliamentary Office of Science and Technology published a POSTnote in June 2018 addressing the current Age of Criminal Responsibility (ACR) in England and Wales, which remains at 10 years of age, (the lowest in Europe).
The POSTnote addresses the issue of ACR in relation to international legal standards, scientific research on children's mental and moral development, and alternative approaches to dealing with children in conflict with the law.
The ICCA has so far published seven guides dealing with different aspects of the prosecution and representation of children and young people in the criminal justice system (CJS). We have made two films dealing with engagement and communication and child exploitation. We have not as yet addressed the current ACR.
National and International stance on ACR
The UN Convention on the Rights of the Child (UN CRC) declared 11 years ago that an ACR of younger than 12 years is NOT internationally acceptable. In spite of this, consecutive governments in England and Wales, dating back to 2004, have maintained that there is no intention to review the ACR. A 2011 statement on Youth Justice declared “It is entirely appropriate to hold (children over the age of 10) to account for their actions if they commit an offence”. In 2012, the government position was that “young people aged 10 and over are able to differentiate bad behaviour and serious wrongdoing”.
A Private Members’ Bill proposing to increase the ACR to 12 years is being debated in the House of Lords but at the second reading the Government responded in terms that the current ACR “is appropriate and accurately reflects what is required of our justice system”.
Against the government’s position, there is considerable dissent from the UN CRC, which has repeatedly criticised the UK and called for the ACR to be raised to at least 12. Other influential organisations echo this opposition including the Children’s Commissioners, the Royal Society, the Royal College of Psychiatrists, and the All Party Parliamentary Groups for Children and for Women in the Penal System.
First time child entrants to CJS
In the last decade, there have been successful measures put in place to reduce the number of children who enter the CJS for the first time but they have not addressed the behaviour of children. Lamentably, many child entrants, who have been criminalised, are either BAME, looked after and/or disadvantaged children or victims of crime.
The incidence of mental illness and substance abuse among these children is high but, arguably more importantly, 60-90% have communication difficulties and approximately one-fifth of children entering the CJS suffer from autism spectrum disorders, and/or ADH. This raises the complicating factor of their effective participation in any pursuant proceedings.
Brain development of children
The ICCA has written before about the progress being made by academics and researchers into the adolescent brain and its rate of development. Between the ages of 10 to19 years there is significant neurodevelopmental and behavioural change. “An increase in impulsive, risk-taking and sensation-seeking behaviour, peaking in late adolescence before decreasing, has been observed across all cultures studied”. It raises fundamental questions regarding the extent to which children should be held culpable for their actions. Criminal culpability is not simply an understanding of the difference between right and wrong. The Postnote sets out the complexities surrounding a child’s capacity to become morally and criminally responsible. Some have argued this is not achieved until the mid-teens.
Outcomes for child offenders
It is known that many of the children who are criminalised in England and Wales go on to reoffend with those who receive the harshest punishment being the most likely to reoffend. England and Wales has one of the highest rates of child detention in a penal institution and yet is among those nations with the poorest outcomes with regard to reoffending and rehabilitation. There are a plethora of issues that line up to make this a depressing picture including the treatment of children in custody where they are often subjected to physical restraint, solitary confinement and forcible stripping. Across the spectrum, there is a dearth of expertise and fundamental training for staff and too few educational and occupational opportunities for incarcerated children. The MOJ is still working though the key recommendations in the Taylor Review.
Changes to criminalisation if the ACR is raised
If the ACR were to be raised to 12 in the UK, the impact on the welfare system for 10-11 year old offenders would be minimal. In other jurisdictions, where the ACR is over 12, young offenders are managed by relaying on welfare and restorative models – this can include detention.
The ICCA is committed to supporting excellent standards of advocacy for practitioners who work with children and young people in the CJS. For guidance on some of the more complex areas of practice see the Youth Justice Advocacy page on this website.
Landmark court ban on ‘drill music’
At Kingston Crown Court on Friday 15th June 2018, Recorder Ann Mulligan issued three-year criminal behaviour orders in an attempt to curb violent crime.
The orders prohibit a West London drill music gang, known as the 1011 drill group, from mentioning death or injury in their songs. More specifically, the four defendants were ordered not to encourage violence, mention any particular postcodes in a gang-related context or make any reference to the fatal stabbing in West London of a 19 year old, nicknamed ‘Teewiz’.
The four defendants in the case, aged between 21 and 17 years of age, were ordered to give police 24 hours prior notice of any song they planned to publish on social media or 48 hours’ notice of any performances of their music. The gang’s tracks are allegedly linked to a rise in violent crime.
The orders also ban them from owning balaclavas and have prohibited them from attending Notting Hill Carnival.
Metropolitan Police requested the orders
The official police position was set out by the Head of Trident:
"We believe this to be one of the first times, if not the first time, we have succeeded in gaining criminal behaviour orders that take such detailed and firm measures to restrict the actions of a gang who blatantly glorified violence through the music they created."
"This isn't about us straying into the area of regulation or censorship - we are not trying to ban anyone from making music nor are we demonising any one type of music - but the public rightly expect us to take action in a case such as this where a line has very clearly been crossed and the safety of individuals is put at risk."
What is drill music?
Drill music is a form of rap music which originated in Chicago. It is defined by its dark, often violent and rebellious nature. "Drill" is a slang word for use of automatic weapons and it more common usage refers to fighting or retaliating, corralling members to provoke rivals.
UK drill videos contain threats and provocation and are generally created by gang members from rival areas. These are not the kind of music videos which aim to capture the stark and often genuinely, artistic reality of a difficult young life; they go significantly further to glamourise young people brandishing weapons, making provocative remarks about incidents of other young people being seriously injured and killed, and they can contain explicit threats to stab or shoot specific individuals and members of rival gangs.
Social media makes the videos available to wide audiences and a lack of response to a perceived threat can lead to feelings and accusations of inadequacy or weakness, loss of status or reputation. Not responding in real terms can lead to young people being labelled ‘internet gangsters’ which is an insult.
Rap music in of itself is vastly popular with young people and the lyrics are distinctly ‘explicit’. This week, 20 year old rapper, XXXTentacion, was shot dead in Florida. His music is widely recognised as some of the best of its kind but had been removed from Spotify playlists due his own violent criminal behaviour and past offending. His YouTube channel has 5 million subscribers.
Court sentencing in drill music cases
Drill music videos have featured in criminal cases before the courts. On May 17 2016, after a bitter YouTube rap war involving drill music videos, 4 London gang members were sentenced to a total of 97 years in prison for the murder of an 18-year old rival gang member in Hackney. During the trial, jurors were shown 8 videos featuring rival gangs making threats to each other in the months before the crime. The last of these films was a Hoxton Boys video, which issued threats to one of the defendants, and which was filmed at the location where the victim was ultimately stabbed to death two months later. One defendant took to Twitter just before the murder to tweet; ‘This road ting [gonna] end one day. They say the only way out is jail or dead and I see both.’ In sentencing the men, HHJ Rebecca Poulet QC told them; ‘I have no doubt that the ongoing threat between you and the Hoxton Boys was at the heart of this attack.’
Catch 22’s research concludes that ‘the content of online material that is provoking face-to-face violence comes in a variety of forms: music videos that taunt and provoke young people and groups, photos and videos of young people trespassing into areas associated with rival groups, photos and videos displaying acts of theft from young people, and photos and videos displaying real-life acts of violence’.
Value of wider understanding for youth justice practitioners
Practitioners seized of a more practical understanding of the uses and extent to which social media plays its role in violent and sexual crime would be more able to:
- put before the courts an explanation of what may have led a vulnerable young person into crime
- explain what peer pressures were exerted upon a young person to carry drugs or weapons
- mitigate the seriousness of any offending in light of the wide use of social media as a catalyst for offending which did not exist in the same way before the digital technological revolution.
MoJ publishes vision for secure schools
On 1st June, the Justice Minister, Dr. Philip Lee, launched the government’s vision for secure schools. This is in direct response to the Charlie Taylor Review which the ICCA highlighted in December 2017. Secure schools will have at their heart, education, healthcare and physical activity. Such a development is a much awaited departure from the current custodial estate with education as a secondary measure. Whilst it is likely to take some time to establish secure schools across the country, the first ones are expected to be in the North West and South East England with 60-70 places for young people who would currently be sent to Young Offenders’ Institutions or Secure Training Centres.
Potential changes to the youth justice landscape
Two recently published reports highlight similar flaws in the current system of justice affecting children and young people. The Standing Committee for Youth Justice (SCYJ) has produced a report on child defendants and video links. Fewer than 12% of those surveyed felt it had made a positive impact on their experience. This fits with the apparent lack of engagement children and young people experience when having to navigate the criminal justice system leaving them feeling that they have no real participation in spite of the process addressing their behaviours and their futures.
The Centre for Justice Innovation has published a paper proposing a fairer way of dealing with young people between the ages of 18 and 24 who are currently treated in the criminal justice system in the same way as adults. The paper sets out the method and rationale in order to achieve a fairer process for those in this age bracket who are not ‘mature’; who are from BAME backgrounds and treated differently; who are previously ‘looked after children’ with little or no ongoing support. Over 75% of young people in this age group re-offend which has extensive financial consequences and it can destroy communities.
There is much merit in both these published papers and advocates who prosecute and represent children and young people in the criminal justice system are encouraged to read them.
S.45 Modern Slavery Act 2015 defence – clarification of the burden of proof
Two otherwise unrelated appeals were heard before the Lord Cheif Justice of England and Wales, the RT. Hon. Lord Burnett of Maldon, The Hon. Mrs Justice Andrews DBE* and the Hon. Mr Justice Martin Spencer.
Both appellants were Albanian nationals and both had raised the defence available to them under s.45 Modern Slavery Act, that they had been victims of trafficking.
The first appellant, MK was originally convicted of two offences; conspiracy to supply a Class A drug (cocaine) and being in possession of an identity document with improper intention. On 26 June 2017 she was sentenced to 8 years' imprisonment on the offence of conspiracy and 5 months' imprisonment on the second count, to run concurrently. In the same month the second appellant was convicted of a single count of possession of an identity document with improper intention. She was sentenced to 15 months' imprisonment.
Both Judges at first instance came to the same conclusion as to the interpretation of the burden of proof in such cases:
(i) The defendant bears an evidential burden to raise the issue whether she was a victim of trafficking or slavery;
(ii) Having successfully done so, it is for the prosecution to prove, beyond reasonable doubt, that she was not;
(iii) If the prosecution succeeds in that, the section 45 defence will not avail the defendant;
(iv)However, if the prosecution fails in this respect, the legal or persuasive burden of proof in respect of the other elements of the defence falls on the defendant. Therefore, if the defendant is over 18 years old, she must prove on the balance of probabilities:
(a) That she was compelled to commit the offence;
(b) That the compulsion was as a direct consequence of her being or having been a victim of slavery or relevant exploitation; and
(c) That a reasonable person in the same situation as her and having her relevant characteristics would have no realistic alternative to doing the act which constitutes the offence.
Court of Appeal
The CA concluded that this was wrong and that section 45 of the 2015 Act does not bear the interpretation of the judges at first instance.
It does not implicitly require the defendant to bear the legal or persuasive burden of proof of any element of the defence.
The burden on a defendant is evidential. It is for the defendant to raise evidence of each of those elements and for the prosecution to disprove one or more of them to the criminal standard in the usual way.
Leave to appeal was granted against conviction in the case of MK. The CA quashed the conviction ordering a retrial. The second appellant’s conviction was deemed to be safe in the face of overwhelming evidence in spite of the misdirection by the trial judge of the burden of proof.
*Mrs Justice Andrews DBE is a Governor of the ICCA
An Insight Into Child Trafficking
The ICCA undertook extensive research to produce their recent guide on Child Trafficking and County Lines. We were impressed by the work and training provided by Every Child Protected Against Trafficking (ECPAT) and decided to bring some of that expertise to life by interviewing ECPAT’s Head of Training, Laura Duran.
The interview is now available [HERE] in 4 separate chapters:
1. The work of ECPAT and their training
2. ECPAT’s report – ‘Heading Back to Harm’
3. Children exploited into cannabis cultivation - featuring ‘The Secret Gardeners’, ECPAT’s short film which has recently won the gold medal in the Human Concerns category at the New York Festivals World’s Best TV and Films awards
4. The Modern Slavery Act 2015
Practitioners will find this ICCA film useful when they prosecute or represent children charged with criminal offences that are linked to them being exploited or trafficked. The interview gives an indication of the scale and extent of the problem.
BSB introduces compulsory registration of Youth Court practices
Youth justice practitioners are alerted to new regulatory requirements in relation to Youth Courts which the BSB say will enable them to ‘provide more effective supervision and promote the specialist skills that this area of work requires’. Registration will be effective via the new MyBar portal and will appear publicly on the BSB’s register of barristers. The Regulator has made it known that they will review barristers who are registered for Youth Court work which could then lead to CPD spot checks and / or the requirement for barristers to provide evidence in support of their declaration of competence. The BSB regard it as a high-risk area of work as a result of their 2015 Youth Proceedings Advocacy Review which found that standards of advocacy in the Youth Court were variable. The BSB responded by developing the Youth Proceedings competences.
The ICCA is firmly of the view that Youth Court work is a specialist area of practice. With this in mind, the ICCA has now produced seven specialist guides for youth justice practitioners and a short illustrated film to help navigate this complex area of practice.
Home Office Serious Violence Strategy
On 9th April, the Home Office published its Serious Violence Strategy setting out the response to serious violence and recent increases in knife crime, gun crime and homicide.
There are four main themes tackled in the strategic work one of which is tackling county lines and the misuse of drugs. A new National County Lines Co-ordination Centre is to be developed to tackle violent and exploitative criminal activity associated with county lines. The ICCA has produced guidance to assist practitioners who prosecute and defend in cases where children and young people are involved in criminal activity along county lines.
Howard League guide for sentencing children
The Howard League has produced a comprehensive guide dealing with the issues surrounding child sentencing. 78 children participated in workshops and questionnaires to enable the Howard League to complete this work.
Guidance for Lawyers
The guide is aimed at lawyers, youth justice professionals, social workers, experts and other supporting adults, including parents and carers who are working with and supporting children aged 17 and under who are being sentenced in the criminal courts in England and Wales. The aim of the guide is to help professionals and those adults to better understand their respective roles and responsibilities as well as what to expect when a child or young person is sentenced. Ultimately it is hoped that this will lead to fairer sentencing thereby reducing the likelihood of prison sentences and reoffending rates.
The guide references the work of the ICCA throughout. Practitioners are encouraged to use the Howard League’s Children and Sentencing guide as an additional resource when preparing to prosecute or represent children and young people who face a sentencing hearing. There are helpful ‘Practice Points’ within the body of the resource.
Two new guides for youth justice practitioners
The ICCA has produced two new guides to complement its suite of existing materials. The new guides deal with child trafficking and sexting.
The child trafficking guide covers the topical issue of 'county lines'. According to the National Crime Agency (NCA) there now exists a widespread “county lines” drug trade. Urban gangs use county lines to move Class A drugs and cash between inner-city hubs and more rural areas. According to the NCA, there are at least 720 county lines across England and Wales.
In order to avoid prosecution, gang members are targeting, grooming and deploying children to carry drugs, cash and weapons. The children swept up in this form of exploitation are attracted by large sums of money but they and their families face the threat of kidnap, torture, rape, physical attacks and death if they fail to deliver the goods or lose the cash. They are often robbed because of the large sums of money involved. It is imperative that children who disappear are reported as missing immediately; once they are swept up in grooming rings, they become invisible.
Modern slavery legislation is likely to feature in any prosecutions brought against those who exploit children in this way. The ICCA has worked closely with the Youth Justice Legal Centre and Every Child Protected Against Trafficking (ECPAT) to produce new guidance. We have recorded a filmed interview with Laura Duran, Head of Training at ECPAT giving insightful background to the extent of child exploitation in the UK.
New Sentencing Guidelines Published
On 1 March 2018, the Sentencing Council published new guidelines for sentencing in respect of the possession of bladed articles and offensive weapons, including acid.
At page 15, the guideline deals with bladed articles and offensive weapons (possession and threats) in respect of children and young people which are to be read alongside the Overarching Principles – Sentencing Children and Young People definitive guideline.
The new guidelines come into force on 1 June 2018.
Home Office Launches £13 Million Trusted Relationship Fund
On 25 February 2018, the Home Office launched a £13 million fund to help professionals form close, protective relationships with children and young people at risk of sexual exploitation, county lines gang crime or relationship abuse.
Last year the Home Office commissioned a review by the Early Intervention Foundation which found that a trusted relationship with an adult is an essential part of any programme of support for vulnerable children, and that the lack of trusted relationships is consistently cited in reviews of failures around child sexual abuse and exploitation. The fund will also strengthen the evidence base to establish the initiatives that work to protect young people from exploitation and abuse.
The ICCA will shortly start work on a new guide for advocates working in the area of youth justice to help to equip them with all the necessary information and skills to effectively represent and prosecute trafficked children.
Yesterday the Times, headlined that ‘thousands of children and teenagers are being used by criminal gangs as drug runners in a grooming scandal with echoes of Rotherham and Rochdale’.
According to the National Crime Agency (NCA) there now exists a widespread “county lines” drug trade. Urban gangs use county lines to move Class A drugs and cash between inner-city hubs and more rural areas. According to the NCA, there are at least 720 county lines across England and Wales.
In order to avoid prosecution, gang members are targeting, grooming and deploying children to carry drugs, cash and weapons. The children swept up in this form of exploitation are attracted by large sums of money but they and their families face the threat of kidnap, torture, rape, physical attacks and death if they fail to deliver the goods or lose the cash. They are often robbed because of the large sums of money involved. It is imperative that children who disappear are reported as missing immediately; once they are swept up in grooming rings, they become invisible.
Modern slavery legislation is likely to feature in any prosecutions brought against the drugs lords who exploit children in this way.
Advocates sometimes fail to identify cases where children have a modern slavery defence and too many children are advised to plead guilty. Instead of raising the issue of exploitation at the point of sentencing, advocates should make representations to the Crown before on their own guidance and EU framework on non-punishment and be more prepared to advise clients on Section 45 of the Modern Slavery Act.
The ICCA will work closely with Every Child Protected Against Trafficking (ECPAT) to produce guidance.
In his Parmoor Lecture on 30 October 2017, Sir James Mumby, President of the Family Division, called for serious consideration to be given to the establishment of problem-solving courts under the auspices of an extended jurisdiction of the family court to focus on the whole family and not just, for example, the ‘disposal’ of a criminal case involving a troubled child or teenager. Recognising that this is unlikely to be a solution reached in the near future, he called in the interim for ‘cross-ticketed’ judges and cross-deployment of the judiciary to tackle inter-related familial issues in a problem-solving way. He also asked if the CPS might consider revision of their policies in relation to the prosecution of children.
The ICCA has indicated that the landscape of youth justice will change and shift dramatically over time . Sir James Mumby had added his voice to the swell of opinion which recognises that there are complex and fundamental problems that bring children and parents into contact with the courts. Currently, there is too little joined up thinking, too little money and too little recognition of the importance of Articles 3 and 12 of the United Nations Convention on the Rights of the Child and Article 8 of the European Convention in our law. Advocates practising in this area should be aware of the issues confronting children, young people and their families embroiled in the youth justice system.
On 30 October 2017, the Home Office published a new Concordat on Children in Custody. It follows a lengthy project tackling the problem of transferring children from police custody to local authority accommodation; a requirement under PACE 1984 and the Children Act 1989. It was apparent that police forces and local authorities often misunderstood these statutory obligations and that there was a dearth of local collaboration to effect successful transfers of children. There is now a useful Concordat which sets out the duties and a protocol for practice. For advocates this is crucial information and useful flowcharts are found at pages 24 and 25 of the Concordat.
The ICCA’s Guide on Bail and Remand deals with this topic at page 5 and refers advocates, at footnote 16, to Government guidance published 15 October 2014. Advocates should now refer to the new Concordat.
The Bar Standards Board (BSB) announced on 27 October a new set of regulatory requirements. One of them applies to barristers who practise in the youth courts.
These new rules are to be submitted to the Legal Services Board (LSB) for approval shortly. If the LBS grants its approval, this will mean that from February 2018, any barrister practising in the youth court will be required to register a youth court practice with the BSB. Any such declaration will need to be made at the time of application for the renewal of a practising certificate.
The BSB say that this new rule will assist to raise standards in the youth courts. The Bar Council has responded with concern that the BSB proposal may not actually lead to an improvement in Youth Court advocacy. This concern was raised as part of the Bar Council’s response to the consultation held earlier this summer.
ICCA’s current package of an illustrated film and five guides span the work of youth justice practitioners across the youth court and the crown court; the materials seek to supplement the advocate’s toolbox of specialist skills. The guides for advocates cover: first hearings, bail and remand, sentencing, anonymity and reporting restrictions all of which are important areas of practice affecting children and young people in whichever court they appear. We have also developed a specific guide to assist with making an application for assigned advocate; this guide should help practitioners to file the necessary paperwork to be properly remunerated for serious cases dealt with in the youth courts. The College is working with the Criminal Bar Association to develop specialist youth justice training for pupils and new practitioners.
A new research-based Participatory Youth Practice framework (PYP) was launched in Greater Manchester on 26 October. The framework proposes and recommends a new approach to youth justice with the focus on participation of the child or young person involved in crime. There are a number of downloadable resources to help youth practitioners involve young people in the process and to gather information which may assist in explaining how youngsters become involved in crime.
The same way our film addresses engagement and communication, the PYP places the emphasis on enabling a young offender to participate in the proceedings and feel ‘listened to’.
Young people are more likely to re-offend if they just become part of the process of youth justice. ICCA’s guide on Sentencing of Young Offenders stresses that rehabilitation and reintegration are more important considerations than punishment. The principal aim of the youth justice system is to prevent reoffending.
An independent review into the treatment of, and outcomes for, Black, Asian and Minority Ethnic (BAME) individuals in the Criminal Justice System (CJS) was published on 8 September 2017. There are important recommendations for practitioners involved in the prosecution and representation of BAME individuals in the CJS. Particularly relevant are recommendations nine and ten on page seven.
The Royal College of Speech and Language Therapists (RCSLT) has issued new research on the communication needs of those in the youth justice system.
The paper sets out clearly the evidence base for Speech, Language and Communication Needs (SLCN) in the criminal justice system; stating that: “The implications for a young person with SLCN within the CJS can be profound. Within the CJS, young people with SLCN are faced with situations in which they require the ability to understand and retain complex information in stressful circumstances. They need to understand the processes they are subject to as well as communicate and interact proficiently with a wide range of individuals”.
The Youth Justice Legal Centre (YJLC) has helpfully and thoroughly analysed the decision in R v Grant-Murray and Henry; R v McGill, Hewitt and Hewitt  EWCA 1228 which raises, among other matters, the issue of the effective participation of young offenders in the criminal justice system. All five appeals against the joint enterprise direction were rejected, following the decision in R v Jogee  UKSC 8 and the subsequent decision in R v Johnson & Ors  EWCA Crim 1613. Whilst this case is a further positioning of the Court of Appeal in relation to appeals based on a pre-Jogee interpretation of joint enterprise, it does assist practitioners with the way forward in terms of representing young people in the criminal justice system.
- For example, at paragraph 220 onwards, under the section headed: “The adequacy of current procedures for the trial of young persons” the Court of Appeal confirmed: “…..that the principles in R v Lubemba  EWCA Crim 2064 apply to child defendants as witnesses in the same way as they apply to other vulnerable witnesses.” (paragraph 226).
- There is reference again to compulsory training for advocates representing children although there are no such plans in place currently.
- At paragraph 227 the Lord Chief Justice announced an amendment to the plea and trial preparation hearing (PTPH) form. This will now include a checklist of the things that need to be considered when young defendants are in the Crown Court. It will also require the judge with conduct to give reasons for departing from the practice directions. This is important in terms of decisions relating to children and young people sitting outside the dock.
- Interestingly, paras 95- 99 of the judgment deal with the submissions on tailoring directions and discusses some of the recent scientific developments about adolescent brain development.
- Paragraphs 105 – 115 provide a useful summary of the correct criminal procedure and law as applicable to young or vulnerable defendants.
- Paragraph 112 refers specifically to The Advocate's Gateway Toolkits and the importance of clear language and the avoidance of tag questions when questioning certain witnesses; “It is important to emphasise that these observations apply to defendants as much as to other witnesses.”
On 9 June 2017, the Court of Appeal handed down judgment in the case of Markham and Edwards v The Queen  EWCA Crim 739. The matter concerned appeals against sentence and an appeal against the ruling of Mr Justice Haddon-Cave to lift the reporting ban and allow unrestricted reporting. Both defendants were 15 at the time of convictions. Their sentences were reduced from 20 years to 17 and a half years. A stay of the decision at first instance to lift reporting restrictions was granted to allow for the matter to be judicially reviewed. The appeal came before the judicial review hearing could be listed, making Judicial Review proceedings academic.
The judgment deals with the matter of the reporting restrictions at paragraphs 73 – 92. Having balanced the arguments in relation to competing principles (primarily articles 8 and 10 ECHR), the Court of Appeal came down firmly in favour of lifting reporting restrictions on the basis that it is in accordance with law, it pursues a legitimate aim and is a reasonable and proportionate measure. This recent decision should be read in conjunction with the information contained in ICCA's guide to anonymity and reporting which sets out case by case advice on these matters.