Introduction

This response to the White Paper restricts itself to the second of the three proposals on which the Government seeks comment. That is:

Firstly, whether to take children out of the Crown Court (to be dealt with in the new ‘strengthened youth court’) and, if so, whether there should be an option to retain serious cases involving 16 and 17 year olds in the Crown Court.

Secondly, where there are adult co-defendants, whether the child should be tried with the adult(s) in the Crown Court, whether the adult(s) should be tried with the child in the ‘strengthened youth court, or whether the Crown Court should decide upon the venue in a preliminary hearing.

However, the Association is dismayed by the failure to afford a distinct and separate review of the way in which children in trouble are dealt with in England and Wales and, in any event, the lack of wider consultation at this stage on the youth justice aspects of the White Paper. A separate response is therefore being submitted to comment on other proposals referred to through the White Paper which impact on the youth justice system and to outline the case for a separate review.

Comment on the proposals for the trial of children

The NAYJ welcomes the proposal for a strengthened youth court and the removal of children from the jurisdiction of ‘adult’ Crown Courts. Whilst the NAYJ would press for comprehensive review (as mentioned above), in the context of the options explored within the White Paper the main features of a system favoured by the NAYJ are as follows:

· Children should not be denied the safeguard of a right to trial by jury for more serious offences.

· All children (from the age of criminal responsibility to the age of 18) should be dealt with in the strengthened youth court, with no option to try 16 and 17 year olds in the Crown Court.

· Where there is an adult co-defendant who must be jointly tried, the trial should be held in the strengthened youth court, with the potential for trial by jury as appropriate.

Whatever the Government’s final position on jurisdiction, venue and jury trial, the following related proposals should also be considered:

· The safeguards for children who appear at any stage in an ‘adult’ magistrates’ court (either because of having an adult co-defendant or because there is no youth court available) should be reviewed.

· The definition of ‘grave crime’ (i.e. those attracting potential long term detention) should be reviewed.

· Judges (and other personnel) in the strengthened youth court should be specialists in dealing with children and receive appropriate training.

· Investment should be made in suitable court rooms, precincts and facilities for the strengthened youth court.

· Legislation and rules governing process in the youth court should be reviewed to enable the fair trial of children and to reflect children’s rights and principles of participation and understanding.

The NAYJ believes that these preferred options most closely reflect the concluding recommendations of the United Nations Committee on the Rights of the Child published on 4 October 2002 following consideration of the UK’s record on measures adopted to give effect to the United Nations Convention on the Rights of the Child.

There is general agreement that the ‘adult’ Crown Court is not a suitable venue in which to deal with children with assurance of a fair trial. The NAYJ does not support the option of retaining any discretion as to venue, even for 16 or 17 year olds. At present, some children are denied full recognition of their status as children in the youth justice system (particularly those aged 17). Criticism of the system in England and Wales will continue if 16 and 17 year olds continue to face trial in an ‘adult’ court, even if decisions were based upon an assessment of maturity and levels of ‘responsibility’ and understanding. The system for the administration of youth justice should be distinct from that for adults, without compromise or exception.

The right to trial by jury for adults attracts widespread debate and it is a reflection of the low status afforded to children’s human rights (at least relating to those who are in trouble with the criminal law or who are ‘anti-social’) that there is relatively little attention given as to whether jury trial should be available in the ‘strengthened youth court’. The NAYJ would suggest that attention be given to this on the basis of further review and consultation.

The question of trial by jury arises, at least pragmatically, in the context of venue for trial where a child has an adult co-defendant. The NAYJ welcomes the Government’s willingness to at least raise the possibility of reversing tradition by giving consideration to holding joint trials in a strengthened youth court rather than in an ‘adult’ Crown Court (this same consideration should be given to joint trials held in magistrates’ courts). It is clear to the NAYJ that whilst it is possible for adults to enjoy their right to a fair trial in a specialist youth court, it is not assured that children can always receive a fair trial in an ‘adult’ court. This position holds true only if trial by jury is available.

Whichever option the Government pursues, there will consequently arise important specific issues (for example, the differential sentencing powers that apply to adult and youth magistrates and the ‘specialism’ of judges and other court personnel). The NAYJ would welcome further opportunity to comment on such issues.