Written evidence from Kate Aubrey-Johnson

 

 

About the respondent

 

I am a criminal barrister, author and children rights and youth justice specialist. I have a particular interest in ensuring criminal lawyers have the specialist knowledge and skills to represent children. I act in an advisory capacity to a number of organisations including the Inns of Court College of Advocacy, the Centre for Justice Innovation, the Howard League for Penal Reform, Newcastle University and University of Nottingham. I am chair of the Ministry of Justice (MoJ) Youth Justice Quality of Representation Working Group. I am responding to the call for evidence on the future of legal aid with specific reference to children in the criminal justice system.

 

 

Overview

 

 

 

 

 

 

 

 

 

What the challenges are for legal aid over the next decade, what reforms are needed and what can be learnt from elsewhere.

 

What the challenges are for legal aid over the next decade, what reforms are needed and what can be learnt from elsewhere –

 

Improving the quality of representation of children in the criminal justice system

There is widespread agreement that criminal lawyers representing children require specialist knowledge and skills. There is considerable evidence that the competence and quality of legal representation of children means that children are not always adequately represented. The challenge for legal aid is to improve the competence and quality of criminal legal representation of children. This can be achieved by reforming remuneration for legal representatives representing child suspects and defendants.

 

 

 

 

 

 

 

 

‘We recommend that: Recommendation 4:

• The Solicitors Regulation Authority and the Bar Standards Board develop a set of standards for recognised training in youth advocacy.

• The Legal Aid Agency should enable advocates with qualifications in youth court practice to claim higher rates of remuneration, as happens in a number of other specialist areas.’ [13]

 

What can be learnt from elsewhere? A specialist accreditation scheme for lawyers who specialise in representing children exists in family cases. The Law Society’s Children Law Accreditation (Children Law Panel) is a recognised quality standard for practitioners representing children in children law proceedings. A similar voluntary accreditation scheme could be established for practitioners representing children in criminal proceedings. Accreditation for child specialist criminal lawyers should include an understanding of the needs of overrepresented groups in the youth justice system, such as BAME children and young adults, looked after children and children living in residential care, children with neurodisabilities.

 

Certificates for assigned advocate[14] are available for ‘unusually grave or difficult’ cases in the youth court. There are on average 1,600 serious cases in the youth court each year (these are cases that would be indictable only if the defendant were aged 18 years or older and therefore tried in the Crown Court) but last year only 443 certificates were granted.[15] As a result, in three-quarters of youth court cases children are not benefiting from being represented by a litigator and advocate as is the case for adults. Automatically granting certificates in cases where a child faces indictable only offences (or providing guidance that there is a presumption that the test of ‘unusually grave or difficult’ is met) would create parity with adult defendants and improve the status and remuneration of youth court work.

 

Proposals:

Youth court work should be remunerated at higher rates than the adult magistrates’ court.

 

Certificates for assigned advocate (formerly certificates for counsel) should be automatically granted (considered as meeting the ‘unusually grave and difficult’ test) where the child is facing serious charges that would be indictable only for an adult defendant.

 

An uplift should be paid to accredited child specialist lawyers (similar to the Children Law Panel in family cases).

Police station

 

For cases involving child suspects (suspects aged under 18 years) there is a presumption in favour of diversion.[16] If this policy is to be effectively implemented, defence legal representatives need to engage actively at an early stage to avoid children being unnecessarily criminalised. The Youth Justice Board’s Strategic Plan aims to “…[p]romote a childhood removed from the justice system, using pre-emptive prevention, diversion and minimal intervention. All work minimises criminogenic stigma from contact with the system.”[17] If lawyers are going to effectively implement this strategy, this may involve the police station representative gathering background information and drafting ‘written representations’ about a child in order to present the police and/or CPS with sufficient information to make a decision whether it is in the public interest to charge or divert informally (community resolution or triage) or formally (youth caution or youth conditional caution). At present, there is not additional funding for lawyers to undertake this important early diversion work. In fact, the current fee structure means there is a perverse incentive to allow cases to reach court.

 

Additionally, BAME children are less likely to be diverted than their white peers, this makes it even more important to provide sufficient funding to legal representatives to ensure cases are properly reviewed, all relevant material is placed before decision makers and all cases with child suspects are properly considered for diversion.

 

 

Proposal:

Police station funding needs to include additional funding for police station engagement in cases with child suspects (this should include all suspects who were aged under 18 at the date of the offence).

 

 

Recruitment and retention problems among legal aid professionals

 

There is an urgent need to retain skilled, experienced criminal lawyers who have the specialist knowledge and skills to engage and represent children effectively.

The Law Society recognise that the status and remuneration of youth court work needs to increase to retain skilled, specialist lawyers.[18] There are increasing shortages of duty solicitors, the minimum average age is 47, and in many regions the average age is considerably higher.[19] At the criminal bar there are a number of senior, experienced barristers who seek to specialise in the youth court, including working mothers returning to work, but simply are not paid enough to sustain a practice.  Similarly, the introduction of the Legal Aid Agency’s requirement for duty solicitors to undertake a minimum 14 hours per week discriminated against women and resulted in part time working mothers, who were specialists in representing children, unable to retain their duty solicitor status.

At present the low status and remuneration of youth court work means that children are often represented by the least qualified and least experienced lawyers. The youth court is considered a ‘training ground.’ [20] Inexperienced lawyers are allowed to practise in the youth court because children are perceived as committing lower gravity offences with less severe sentences; as well as the fact that the youth court is a closed court so their conduct cannot be observed and children, their clients are perceived as unlikely to recognise (and report) poor practice.[21] Pupils and junior barristers represent children in the youth court, where they ‘cut their teeth’ before graduating to the Crown Court where there is better remuneration and higher status work.[22]

Higher legal aid rates could be achieved by increasing the remuneration in the youth court as compared to the adult magistrates’ court (as is the case with payment of CPS agent prosecutors) and providing clearer guidance on the availability of certificates for assigned advocates.  Higher legal aid rates would retain skilled, specialist lawyers, address the shortages of legal aid lawyers and enable lawyers to develop a career specialising in representing children.

 

Providing an uplift for accredited child specialist criminal lawyers would address the poor quality of advocacy in the youth court.

 

 

The impact of the court reform programme and the increasing use of technology on legal aid services and clients & The impact of Covid-19 on legal aid services and clients;

The increased use of virtual / remote hearings as a result of the court reform programme and Covid-19 as well as the reduced number of court sittings negatively impacts children. There is evidence remote hearings are unsuitable for vulnerable defendants.[23] There are concerns that defendants appearing over video link are more likely to be remanded in custody, more likely to receive custodial sentences, and vulnerabilities and hidden disabilities are more likely to be missed.[24] Reducing the number of courts open each day increases the chances children appear in adult courts or are transported long distances. For all these reasons it is even more important children are represented by child-sensitive specialist lawyers.

 

Conclusion

 

Children deserve the highest quality legal representation. Addressing the poor legal aid rates for police station and youth court work will improve the quality of representation and outcomes for children as well as helping to retain skilled and experienced lawyers.

 

 

 

Kate Aubrey-Johnson

Barrister, youth justice specialist, Garden Court Chambers

Chair, MoJ Youth Justice Quality of Representation Working Group

 


[1] Independent Parliamentarians’ Inquiry into the Operation and Effectiveness of the Youth Court Chaired by Lord Carlile of Berriew CBE QC, Sieff Foundation, 2014, p.37.

[2] Youth Proceedings Advocacy Review, Bar Standards Board (BSB) and the Chartered Institute of Legal Executives (CILEx), 2015

[3] Youth Proceedings Competences and guidance, Bar Standards Board (BSB), 2017

[4] Review of the Youth Justice System in England and Wales by Charlie Taylor, 2016, para 104.

[5] Ibid, para 69.

[6] R v Grant Murray and Henry, R v McGill, Hewitt and Hewitt [2017] EWCA 1228

[7] The Lammy Review: An independent review into the treatment of, and outcomes for, Black, Asian and Minority Ethnic individuals in the Criminal Justice System, 2017, recommendation 9.

 

[8] Justice on trial 2019: Fixing our criminal justice system, Law Society, 2019, recommendation 5

[9] Magistrates’ Court Agent day rate £300 / half day rate £150; Youth Court Agent day rate £400 / £200 (some cases will be paid under VHCC terms) – source: CPS Fee Review, Annex A – Further Adjustments to CPS Fee Schemes, 2019

[10] Assuring Advocacy Standards Consultation, Solicitors Regulation Authority, 2019

[11] Assuring Advocacy Standards Consultation Response, Solicitors Regulation Authority, 2020

[12] Time to get it right: Enhancing problem-solving practice in the Youth Court, Centre for Justice Innovation (CJI) and the Institute for Crime and Justice Policy Research (ICPR), Birkbeck, 2020

[13] Time to get it right: Enhancing problem-solving practice in the Youth Court, Centre for Justice Innovation (CJI) and the Institute for Crime and Justice Policy Research (ICPR), Birkbeck, 2020

[14] Criminal Legal Aid (Determination by a Court and choice of Representative) Regulations 2013, paragraph 1. Also see the ICCA’s guide to ‘Making an Application for a Certificate for Assigned Advocate in the Youth Court (formerly a Certificate for Counsel)’, 2019

[15] Legal Aid Statistics England and Wales main data, April to June 2020, Ministry of Justice

[16] See for example, CPS Legal Guidance: Young Offenders, ‘Principles Guiding the Decision to Prosecute’, Crown Prosecution Service (2020); The Cautioning of Offenders, Home Office Circular 18/1994

[17] Youth Justice Board for England and Wales Strategic Plan 2019-2022, p. 7

[18] Justice on trial 2019: Fixing our criminal justice system, Law Society, 2019, recommendation 5.

[19] https://www.lawsociety.org.uk/campaigns/criminal-justice/criminal-duty-solicitors

[20]See for example, Youth Proceedings Advocacy Review, Bar Standards Board (BSB) and the Chartered Institute of Legal Executives (CILEx), 2015, pp54.

[21] Independent Parliamentarians’ Inquiry into the Operation and Effectiveness of the Youth Court Chaired by Lord Carlile of Berriew CBE QC, Sieff Foundation, 2014, p.30.

[22]See for example, Youth Proceedings Advocacy Review, Bar Standards Board (BSB) and the Chartered Institute of Legal Executives (CILEx), 2015, pp54-55.

[23] Inclusive justice: a system designed for all – interim evidence report, Equality and Human Rights Commission, April 2020

[24] Defendants on video – conveyor belt justice or a revolution in access?, Transform Justice, October 2017