Is the UK System failing youth offenders at every single level? Absolutely.
Using a real-life, recent example, over three blogs I examine the bewildering Magistrates Court Experience for youth offenders followed by the real nightmare that is the Young Offenders Institution (YOI). Substitute the word ‘institution’ for prison, as this is exactly what these youngsters face.
Already in 2017, alongside the daily horrendous violence in all YOI’s, two young men have taken their own lives in a Scottish prison. 18-year-old named Robert Wagstaff died on 17 January just four days after Liam Kerr, 19, died in hospital from injuries he had sustained. The charity Inquest, which helps relatives of people who die in custody, says there have been 274 suicides among young offenders in custody since 1990.
The Government knows the system is badly broken and letting down our young people and in an attempt at reform they commissioned a Review on the Youth Justice System in England and Wales from Charlie Taylor which reported in December 2016. Until recommendations are acted upon, the appalling injustices of the system continue. Real lives continue to be destroyed.
In my next blog I will examine the YOI’s in more detail. In this article, I am going to steer away from Crown Court where professional judges pass sentence on the most serious crimes. Today, I look at the unaccountable amateurs who unnecessarily send our young people to prisons, the magistrates.
The Youth Court
The vast majority of criminal prosecutions of children are heard in the Youth Court. This is essentially a magistrates’ court that has been adapted so that it is a less formal setting, all parties can sit at the same level; the child can have a parent or carer seated alongside them; the magistrates and judges have been specially trained and are expected to use simplified language; the court is closed to the public and automatic reporting restrictions apply.
In order that more youth cases can be heard in this environment, the Youth Court has greater sentencing powers than the adult magistrates’ court – it can impose up to a 24-month Detention and Training Order (DTO) compared to the adult magistrates’ court limit of six months imprisonment – and so hears more serious and complex cases.
A real case in 2016
The son of a friend of mine (let’s call him, LL) experienced this Youth Court.
LL comes from a nice home with good parents but he became involved with a bad crowd and committed a crime when he was 15 years old. Although a serious crime, it involved no violence and was very much a one-off with no back history of this type of offending. After being charged by Police he had to attend court, where he pleaded guilty with mitigating circumstances (including him being a lesser), which was accepted by the Court and the case was adjourned for sentencing reports to be carried out. After lengthy sessions with LL and his family, the Youth Offending Team (YOT), recommended that a custodial sentence was not the best way forward and LL could be best helped in the community. This was placed in their reports and, as is standard, the report was emailed to the magistrates who would be responsible for passing sentence the day before the case was heard.
A sentencing hearing
A month later LL was back in court for sentencing. The mitigating factors from the previous hearing had not been recorded so the three magistrates stated as far as they were concerned they did not exist. Essentially, the incompetence of the Magistrates Court meant that LL hadn’t been recorded as being a lesser, so as far as the sentencing magistrates were concerned, he wasn’t. Why was this? There is no explanation except pure incompetence by the magistrates court. Even accepting that resources are limited, this sort of fundamental error should never happen.
The magistrates hadn’t read the report from the professional Youth Offending Team and the usher had to bring them a hard copy which they flicked through for 30 seconds, before deliberating outside the room. They returned and stunned LL, his family and solicitor by imposing a lengthy custodial sentence.
As a weeping LL was taken to the cells, his family asked their solicitor how on earth this could happen and why had they not followed the recommendations of the YOT. After all, the express guidance giving on youth sentencing is,
‘Custodial sentences must be a last resort for all young offenders’
When the YOT had recommended a community service, how could this possibly be justified? The YOT worker, whilst clearly shocked, revealed it was ultimately a decision for the magistrates and they didn’t have to take any notice of their recommendations. Unfortunately, although magistrates have to give their reasons for imposing custody, for a normal member of the public finding these explanations isn’t easy – the YOT Team recommended a Freedom of Information Act request as the only way. Surely, this lack of transparency can’t be acceptable in 2017?
Tim Bateman summarises the state of children in custody in recent times, “From the early 1990s, custodial sentencing of children rose rapidly and remained stubbornly high for much of the first decade of the twenty first century. This surge in the numbers of children behind bars led the United Nations Committee on the Rights of the Child, in 2008, to register concern that the level of youth incarceration was indicative of a failure to ensure that detention was reserved as ‘a measure of last resort’, representing a breach of the United Nations Convention on the Rights of the Child.” Luckily, the numbers have since dropped and since 2006/07 the number of children in custody has declined significantly, but why can’t all magistrates see that this should still be a last resort – when there are no other options?
In his report, Taylor notes the reoffending rates of children released from short custodial sentences are the highest of any cohort: 80% for those serving under six-month sentences, and 73% for those on six to 12-month sentences. It is his view that short custodial sentences for children are ineffective, costly and detrimental to their rehabilitation. If children must be sentenced to custody, it ought to be for a period of time in which there is a realistic chance of changing their behaviour, improving their mental and physical health, and raising their educational attainment
Taylor recommends Youth Courts are recommended with Children’s Panels which will take a much more holistic approach to sentencing. Even for these Panel’s, they will only give children aged under 16 a Plan with a custodial element in exceptional circumstances, and usually where they pose a significant risk to the public.
A lack of information
LL’s parents had a thousand questions as nothing had been given to them about what happens when a youth is given a custodial sentence. Luckily, The YOT worker was able to answer the immediate concerns:
- Could they see their son in the cells? They couldn’t;
- Where he was going to be detained? They wouldn’t know until later later that afternoon;
- How could they get money to him? They couldn’t. When he was processed by his Youth Prison they would find out;
- When could they visit him. As above;
- Could he call them? He should be given a 5 minute call that evening.
They asked their solicitor if they could appeal against the sentence. He confirmed they could but by the time it had been processed by the magistrates court it would be well into the following week when it would be heard by a Crown Court Judge (in fact, the Magistrates Court sat on it for six days, meaning it wasn’t heard for 10 days – all days where they sat helplessly by whilst LL languished behind bars). In fact, there are very few appeals against sentence by convicted young offenders. The campaigning charity, Transform Justice, suggest the following reasons for this:
- If they appeal from the magistrates’ court, their sentence could go up;
- If they were given a short prison sentence, it may be nearly over by the time the appeal comes to court;
- If they lose their appeal they can be faced with paying £250 towards costs;
- Many offenders, however unfair they think their sentence, can’t face the court process again;
- The reality of uk magistrates today.
Transform Justice also reported more widely on Magistrates in 2016 saying that the magistracy is an ancient institution much of whose structure and culture has not changed fundamentally in many decades. Their appraisal system is weak and training is poor. It found magistrates lacking in diversity and not representing their local communities and the age trend was heading upwards with only 20% below age 50 and a massive 34.8% over 60. It also notes that maybe this isn’t surprising when the application form to apply is 17 pages long.
However, the main problem found by Transform Justice was obtaining relevant information:
“This submission has been hampered by difficulties in finding up to date data about the magistracy. Very little is in the public domain, particularly online. Diversity data is published, but it is not robust, and not extensive. There is no published data on the diversity of Youth and Family Court magistrates, or on chairs and bench chairs. There is also no data on class, sexual orientation and faith. Two areas pose the greatest difficulties to citizens in finding out about the magistracy: advisory committees and training. There is virtually no information in the public domain about either subject.
How can we make magistrates accountable for poor decisions?
The sentence can be appealed in the Crown Court in front of a professional judge and bail can be granted whilst awaiting the hearing.
But, how could LL’s parents receive real justice for this clearly incorrect decision by the magistrates? Could their MP help? No, they won’t become involved in legal cases. So how do you make a complaint against a specific magistrate? There is a system whereby:
You can complain if you’re unhappy with a judge, magistrate, tribunal member or coroner’s:
You must make your complaint within 3 months. You can’t use the complaints process to challenge a decision or sentence.
In his report, Charlie Taylor argues that if the youth justice system is truly to protect the public, it must succeed in changing the lives of these most troubled children. To do this, a system set up almost two decades ago to tackle a different problem must evolve to respond imaginatively and proportionately to the challenges of today.
But, the reality is so different. Every week out of touch magistrates make poor decisions. In the case of LL we saw incompetence, but more importantly we saw magistrates continuing to ignore advice from professional youth workers and unnecessarily sending a child into custody. Based on little more than their personal whims?
But, however wrong the decision taken by a magistrate with the devastation caused to so many people, as the situation is today they can just keep on destroying lives with no accountability. And there is nothing you can do about it. It can’t be right, can it?