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Oliver Hanmer reports the findings of the regulator’s review of advocacy standards within youth proceedings, and Parliamentarian and practitioner perspectives on the problems currently endemic in the youth justice system
In November last year, the Bar Standards Board (BSB) published The Youth Proceedings Advocacy Review which we and CILEx Regulation commissioned from The Institute for Criminal Policy Research.
The report was presented to the Youth Justice Convention on 25 November 2015 to a wide range of professionals working within youth justice.
Lord McNally, Chair of the Youth Justice Board commented:
'Young people are among the most vulnerable users of the justice system, and, as this review identifies, have a range of increasingly complex and challenging needs. It is now more important than ever that advocates in the youth courts have the distinct capabilities and expertise to effectively provide the support these young people need on their journey through the youth justice system.
'I applaud the work of the Bar Standards Board in proactively taking the lead in exploring how to improve the quality of advocacy in youth court proceedings, and it is good that this review recognises the considerable work of youth offending teams (YOTs) in informing and supporting youth courts in their decision-making.'
Why we commissioned the research
As a public interest regulator, it is very important for us to understand how young people experience the service of barristers and the justice system as a whole. One of our strategic priorities is to ensure that advocacy standards are maintained. Where there is evidence that they are not, we have a responsibility to consider appropriate regulatory action. The report published in June 2014 following the Parliamentary Inquiry led by Lord Carlile into the operation and effectiveness of the youth justice system revealed concerns about the standards of advocacy in youth proceedings (see 'Review into youth court advocacy', Counsel October 2014).
It was clear that, given the views expressed in the Carlile Inquiry, the risk to vulnerable young people of poor quality advocacy and the increasingly serious nature of cases heard in the Youth Court, we needed to develop a better understanding of advocacy in youth proceedings. We wanted to substantiate those concerns with our own independent research. Youth justice is an area where those involved, be they witnesses or defendants, are particularly vulnerable.
What the findings told us about advocacy standards
The report found that, while there were examples of good practice among advocates appearing in youth court proceedings, the overall quality of advocacy was 'highly variable'.
Other key findings from the report include:
Inherent problems with the youth justice system
The needs of young people within the youth justice system cannot be fixed by addressing advocacy standards alone. More needs to be done to tailor the system to the needs of children and young people. Concerns with the wider nature of the youth justice system were highlighted. For example:
With this in mind, we are seeking a collaborative response to the issues raised in our review. We have called on all parties, including the Ministry of Justice and the Youth Justice Board, to work with us to address the issues highlighted. We will look to engage with all legal advocates in youth court proceedings in order to find a solution to improve standards of advocacy across the board.
The report recommendations and our response
We have accepted the recommendations set out in the report. These include: countering the perceived low status of youth court proceedings; and recognising youth justice as a specialist field for advocates.
Specialist training and a drive to simplify language in courts so that young people can better understand what is happening have also been suggested. We are currently considering our response.
As a regulator of advocates we are likely to focus our attention on the recommendations that relate to standards of advocacy and how they can be maintained. We will explore all options including compulsory training, as well as means of identifying poor quality advocacy.
In order to have the greatest impact, any regulatory action needs to apply equally to all advocates, irrespective of profession. We are committed to working with the other advocacy regulators to consider what that response should be.
We will also be looking to work with other agencies within the youth justice sector and the wider legal sector to address the systemic issues that the report identifies. In particular, we are keen to explore the extent to which the Lord Chancellor's desire for more problem-solving in courts could be reflected within youth justice.
I believe that all of us associated with the justice system have a responsibility to give young people who come into contact with that system the best chance by treating them as fairly and professionally as possible.
We look forward to taking a collaborative approach as we formulate our response and then implement whatever we decide upon. We will make further announcements on next steps in spring 2016.
You can read the full report here.
Contributor Oliver Hanmer, BSB Director of Supervision
Lord Carlile of Berriew CBE QC, Carlile Inquiry Chair:
'The BSB Youth Proceedings Advocacy Review follows an All Party Parliamentarians' review published in 2014, which I chaired. Our review made recommendations with which the BSB review is consistent.
'The essence of the Review's findings is that youth court practice is different from other criminal practice, requires special training and skills, and should not be regarded merely as first steps in advocacy for young and inexperienced practitioners. My own first contested trial was in the Camberwell Green Juvenile Court in 1971: though my young client was cleared of throwing a stone through the caretaker's window, at the time I floundered in a well of inexperience, and my sole special qualification was being only eight years older than my client. The complexities of the lives of most young offenders deserve better than this.
'The Lord Chancellor Michael Gove has announced his radical move towards problem-solving courts, a change of policy especially welcome in dealing with children, and entirely consistent with the BSB review.
'The BSB recommends mandatory training and 'ticketing' for all youth court judges whether salaried or lay magistrates, and obligatory training for advocates in those courts. This will not deprive young advocates of the opportunity to develop their practices in the jurisdiction. It will ensure that, once trained, they will know where to look for expertise and evidence, how to communicate more effectively with clients, and how to engage with opposing advocates. Perhaps above all, the new regime will provide essential insights to enable identification of cases where a court disposal might better be replaced by a mental health intervention.
'From the proposals a comprehensive accreditation scheme can be developed, similar to existing systems for non-criminal jurisdictions—the Children Law Accreditation Scheme and the Mental Health Accreditation Scheme.
'The BSB deserves plaudits for the quality of the Institute for Criminal Policy Research team's thoroughness and clarity, and for the BSB's sense of urgency in engaging with this issue very soon after the Parliamentarians' review. Discussions between the Parliamentarians, and their advisers, and the Law Society have produced some interest, but a slower response. It is to be hoped that they will provide a positive reply within weeks rather than months.
'Whilst we still have a Lord Chancellor with an appetite for reform, we should seize the opportunity that exists for the modernisation of the youth court process.'
Chantal-Aimée Doerries QC, Chairman of the Bar:
'The BSB review deserves praise for highlighting the difficulties faced by young, vulnerable people in youth proceedings, and for recognising that our justice system should be better tailored to meet their needs. The report recognises that the bulk of legal practice in the Youth Court is undertaken by solicitors and it is disappointing that the Solicitors Regulation Authority opted not to be involved.
'The review identifies a wide range of factors which impede the effectiveness of advocacy in youth proceedings and recognises that this work cannot be viewed in isolation from its wider legal and institutional context. Young, vulnerable people have a wide range of needs which must be taken in to account if they are to have the same access to justice as other citizens and for their advocates to provide the best representation possible.
'The Bar has been at the forefront of developing training for barristers who deal with vulnerable witnesses, and this summer the Bar Council is playing a key role in arranging the provision of compulsory training for 6,000 advocates from the Bar alone.
'It is unfortunate that work in the Youth Court is undervalued and underpaid, and often carried out by less experienced advocates. We look forward to working closely with the profession to provide the support and training advocates need.'
Kate Aubrey-Johnson, Criminal barrister and Director of the Youth Justice Legal Centre:
'This report highlights an open secret within the legal profession: that children are routinely represented by the least experienced, least well paid barristers. And yet, we know that the youth court deals with serious cases and can impose custodial sentences of up to two years. Child defendants are likely to be acutely vulnerable, the majority have a significant communication impairment, 30% of children in custody are suffering from mental illness, 15% are on the autism spectrum (compared with only 1% of the general youth population) and brain injuries and impairments are four times as common among children in custody as among the general population.
'We welcome the recognition by the BSB that barristers should be properly equipped to deal with the special demands of youth court work, and supported with practical training and resources. We would encourage the introduction of mandatory training or accreditation for all lawyers representing children.
'As the report identifies, over 70% of barristers representing children in criminal cases have never received any specialist youth training. The consequences for children can be devastating, and many are unnecessarily criminalised. Opportunities to divert cases or pursue non-criminal outcomes are missed because their advocates are unfamiliar with the youth justice system.'
Kate is a criminal barrister currently on sabbatical from Garden Court Chambers. Youth Justice Legal Centre: www.yjlc.uk
Paula Backen, Registered intermediary:
'As a registered intermediary with witnesses and a trained and experienced intermediary with defendants, I was most heartened to see this report and its recommendations, which my own experience in many ways reflects. In particular, the variability in level of skill of advocates, the courts' willingness to adapt the court traditions to meet the special needs of a young person, and the inappropriate adversarial approach which does not meet the obligation to have regard for children's welfare.
'It is important to recognise that the population of young people in court includes both those with normal development and expected maturity of communication, and the larger group who do not have age appropriate communication (60% of all young offenders have a communication disorder, Bryan et al 2007). The intermediary is generally commissioned to cases involving just the latter group.
'The report recommends increased training in adapting communication but this is not an easy task for legal professionals who have spent years trying to be precise and specific in their vocabulary and syntax. In my experience, the advocate who reads all the [Advocates Gateway] toolkits still needs help from an intermediary to adapt to the specific needs of each defendant. Giving evidence is a very small part of a defendant's experience and advocates need assistance in taking instruction and conference communication. For example, when asked to replace the word "obtain" with "get" I was told by an advocate that he could not do that, as he meant "obtain". I come across many advocates and judges who consider that reassuring a defendant that he can "say if he does not understand" is sufficient, when we know few people will admit to not understanding and may not know what they have not understood. Consider the following example: "With regard to this matter on 21 June 2014 when you attended the address, you were planning to meet him weren't you?"
'Youth defendants with adult co-defendants can be the most tricky to assist as the Crown Court rarely recognises their needs. For example, a youth with ADHD had not taken his medication in order to avoid vomiting in the dock, and was considered by the judge to be "showing no remorse" in the dock after a six-week trial.
'Many suspects would benefit from an intermediary (a neutral communication specialist) rather than an Appropriate Adult in the police interview. Just recently I have taken on such a case, and the interviewing officer was very clear about the differential benefits.'
Fiona Abbott JP, Chairman of the Magistrates' Association Youth Court Committee:
'We welcome this report and are pleased that the difficulties seen in the Youth Court on a regular basis are being recognised and addressed. The children and young people who appear in the youth court are vulnerable and frequently disadvantaged in a variety of ways. It's therefore essential that they are represented as effectively as possible to ensure that the court is provided with necessary information to help them make the correct decisions.
'Young people deserve nothing less than the highest standards of advocacy and the Magistrates' Association is pleased to be in discussion with the BSB about future initiatives. We support our members with training on youth court law, sentencing and communication with vulnerable young defendants and witnesses.'
The report was presented to the Youth Justice Convention on 25 November 2015 to a wide range of professionals working within youth justice.
Lord McNally, Chair of the Youth Justice Board commented:
'Young people are among the most vulnerable users of the justice system, and, as this review identifies, have a range of increasingly complex and challenging needs. It is now more important than ever that advocates in the youth courts have the distinct capabilities and expertise to effectively provide the support these young people need on their journey through the youth justice system.
'I applaud the work of the Bar Standards Board in proactively taking the lead in exploring how to improve the quality of advocacy in youth court proceedings, and it is good that this review recognises the considerable work of youth offending teams (YOTs) in informing and supporting youth courts in their decision-making.'
Why we commissioned the research
As a public interest regulator, it is very important for us to understand how young people experience the service of barristers and the justice system as a whole. One of our strategic priorities is to ensure that advocacy standards are maintained. Where there is evidence that they are not, we have a responsibility to consider appropriate regulatory action. The report published in June 2014 following the Parliamentary Inquiry led by Lord Carlile into the operation and effectiveness of the youth justice system revealed concerns about the standards of advocacy in youth proceedings (see 'Review into youth court advocacy', Counsel October 2014).
It was clear that, given the views expressed in the Carlile Inquiry, the risk to vulnerable young people of poor quality advocacy and the increasingly serious nature of cases heard in the Youth Court, we needed to develop a better understanding of advocacy in youth proceedings. We wanted to substantiate those concerns with our own independent research. Youth justice is an area where those involved, be they witnesses or defendants, are particularly vulnerable.
What the findings told us about advocacy standards
The report found that, while there were examples of good practice among advocates appearing in youth court proceedings, the overall quality of advocacy was 'highly variable'.
Other key findings from the report include:
Inherent problems with the youth justice system
The needs of young people within the youth justice system cannot be fixed by addressing advocacy standards alone. More needs to be done to tailor the system to the needs of children and young people. Concerns with the wider nature of the youth justice system were highlighted. For example:
With this in mind, we are seeking a collaborative response to the issues raised in our review. We have called on all parties, including the Ministry of Justice and the Youth Justice Board, to work with us to address the issues highlighted. We will look to engage with all legal advocates in youth court proceedings in order to find a solution to improve standards of advocacy across the board.
The report recommendations and our response
We have accepted the recommendations set out in the report. These include: countering the perceived low status of youth court proceedings; and recognising youth justice as a specialist field for advocates.
Specialist training and a drive to simplify language in courts so that young people can better understand what is happening have also been suggested. We are currently considering our response.
As a regulator of advocates we are likely to focus our attention on the recommendations that relate to standards of advocacy and how they can be maintained. We will explore all options including compulsory training, as well as means of identifying poor quality advocacy.
In order to have the greatest impact, any regulatory action needs to apply equally to all advocates, irrespective of profession. We are committed to working with the other advocacy regulators to consider what that response should be.
We will also be looking to work with other agencies within the youth justice sector and the wider legal sector to address the systemic issues that the report identifies. In particular, we are keen to explore the extent to which the Lord Chancellor's desire for more problem-solving in courts could be reflected within youth justice.
I believe that all of us associated with the justice system have a responsibility to give young people who come into contact with that system the best chance by treating them as fairly and professionally as possible.
We look forward to taking a collaborative approach as we formulate our response and then implement whatever we decide upon. We will make further announcements on next steps in spring 2016.
You can read the full report here.
Contributor Oliver Hanmer, BSB Director of Supervision
Lord Carlile of Berriew CBE QC, Carlile Inquiry Chair:
'The BSB Youth Proceedings Advocacy Review follows an All Party Parliamentarians' review published in 2014, which I chaired. Our review made recommendations with which the BSB review is consistent.
'The essence of the Review's findings is that youth court practice is different from other criminal practice, requires special training and skills, and should not be regarded merely as first steps in advocacy for young and inexperienced practitioners. My own first contested trial was in the Camberwell Green Juvenile Court in 1971: though my young client was cleared of throwing a stone through the caretaker's window, at the time I floundered in a well of inexperience, and my sole special qualification was being only eight years older than my client. The complexities of the lives of most young offenders deserve better than this.
'The Lord Chancellor Michael Gove has announced his radical move towards problem-solving courts, a change of policy especially welcome in dealing with children, and entirely consistent with the BSB review.
'The BSB recommends mandatory training and 'ticketing' for all youth court judges whether salaried or lay magistrates, and obligatory training for advocates in those courts. This will not deprive young advocates of the opportunity to develop their practices in the jurisdiction. It will ensure that, once trained, they will know where to look for expertise and evidence, how to communicate more effectively with clients, and how to engage with opposing advocates. Perhaps above all, the new regime will provide essential insights to enable identification of cases where a court disposal might better be replaced by a mental health intervention.
'From the proposals a comprehensive accreditation scheme can be developed, similar to existing systems for non-criminal jurisdictions—the Children Law Accreditation Scheme and the Mental Health Accreditation Scheme.
'The BSB deserves plaudits for the quality of the Institute for Criminal Policy Research team's thoroughness and clarity, and for the BSB's sense of urgency in engaging with this issue very soon after the Parliamentarians' review. Discussions between the Parliamentarians, and their advisers, and the Law Society have produced some interest, but a slower response. It is to be hoped that they will provide a positive reply within weeks rather than months.
'Whilst we still have a Lord Chancellor with an appetite for reform, we should seize the opportunity that exists for the modernisation of the youth court process.'
Chantal-Aimée Doerries QC, Chairman of the Bar:
'The BSB review deserves praise for highlighting the difficulties faced by young, vulnerable people in youth proceedings, and for recognising that our justice system should be better tailored to meet their needs. The report recognises that the bulk of legal practice in the Youth Court is undertaken by solicitors and it is disappointing that the Solicitors Regulation Authority opted not to be involved.
'The review identifies a wide range of factors which impede the effectiveness of advocacy in youth proceedings and recognises that this work cannot be viewed in isolation from its wider legal and institutional context. Young, vulnerable people have a wide range of needs which must be taken in to account if they are to have the same access to justice as other citizens and for their advocates to provide the best representation possible.
'The Bar has been at the forefront of developing training for barristers who deal with vulnerable witnesses, and this summer the Bar Council is playing a key role in arranging the provision of compulsory training for 6,000 advocates from the Bar alone.
'It is unfortunate that work in the Youth Court is undervalued and underpaid, and often carried out by less experienced advocates. We look forward to working closely with the profession to provide the support and training advocates need.'
Kate Aubrey-Johnson, Criminal barrister and Director of the Youth Justice Legal Centre:
'This report highlights an open secret within the legal profession: that children are routinely represented by the least experienced, least well paid barristers. And yet, we know that the youth court deals with serious cases and can impose custodial sentences of up to two years. Child defendants are likely to be acutely vulnerable, the majority have a significant communication impairment, 30% of children in custody are suffering from mental illness, 15% are on the autism spectrum (compared with only 1% of the general youth population) and brain injuries and impairments are four times as common among children in custody as among the general population.
'We welcome the recognition by the BSB that barristers should be properly equipped to deal with the special demands of youth court work, and supported with practical training and resources. We would encourage the introduction of mandatory training or accreditation for all lawyers representing children.
'As the report identifies, over 70% of barristers representing children in criminal cases have never received any specialist youth training. The consequences for children can be devastating, and many are unnecessarily criminalised. Opportunities to divert cases or pursue non-criminal outcomes are missed because their advocates are unfamiliar with the youth justice system.'
Kate is a criminal barrister currently on sabbatical from Garden Court Chambers. Youth Justice Legal Centre: www.yjlc.uk
Paula Backen, Registered intermediary:
'As a registered intermediary with witnesses and a trained and experienced intermediary with defendants, I was most heartened to see this report and its recommendations, which my own experience in many ways reflects. In particular, the variability in level of skill of advocates, the courts' willingness to adapt the court traditions to meet the special needs of a young person, and the inappropriate adversarial approach which does not meet the obligation to have regard for children's welfare.
'It is important to recognise that the population of young people in court includes both those with normal development and expected maturity of communication, and the larger group who do not have age appropriate communication (60% of all young offenders have a communication disorder, Bryan et al 2007). The intermediary is generally commissioned to cases involving just the latter group.
'The report recommends increased training in adapting communication but this is not an easy task for legal professionals who have spent years trying to be precise and specific in their vocabulary and syntax. In my experience, the advocate who reads all the [Advocates Gateway] toolkits still needs help from an intermediary to adapt to the specific needs of each defendant. Giving evidence is a very small part of a defendant's experience and advocates need assistance in taking instruction and conference communication. For example, when asked to replace the word "obtain" with "get" I was told by an advocate that he could not do that, as he meant "obtain". I come across many advocates and judges who consider that reassuring a defendant that he can "say if he does not understand" is sufficient, when we know few people will admit to not understanding and may not know what they have not understood. Consider the following example: "With regard to this matter on 21 June 2014 when you attended the address, you were planning to meet him weren't you?"
'Youth defendants with adult co-defendants can be the most tricky to assist as the Crown Court rarely recognises their needs. For example, a youth with ADHD had not taken his medication in order to avoid vomiting in the dock, and was considered by the judge to be "showing no remorse" in the dock after a six-week trial.
'Many suspects would benefit from an intermediary (a neutral communication specialist) rather than an Appropriate Adult in the police interview. Just recently I have taken on such a case, and the interviewing officer was very clear about the differential benefits.'
Fiona Abbott JP, Chairman of the Magistrates' Association Youth Court Committee:
'We welcome this report and are pleased that the difficulties seen in the Youth Court on a regular basis are being recognised and addressed. The children and young people who appear in the youth court are vulnerable and frequently disadvantaged in a variety of ways. It's therefore essential that they are represented as effectively as possible to ensure that the court is provided with necessary information to help them make the correct decisions.
'Young people deserve nothing less than the highest standards of advocacy and the Magistrates' Association is pleased to be in discussion with the BSB about future initiatives. We support our members with training on youth court law, sentencing and communication with vulnerable young defendants and witnesses.'
Oliver Hanmer reports the findings of the regulator’s review of advocacy standards within youth proceedings, and Parliamentarian and practitioner perspectives on the problems currently endemic in the youth justice system
In November last year, the Bar Standards Board (BSB) published The Youth Proceedings Advocacy Review which we and CILEx Regulation commissioned from The Institute for Criminal Policy Research.
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