Representing Children and Young Persons
All criminal defence solicitors will have to represent children and young persons both at the police station as suspects, and in court in criminal proceedings. Some solicitors enjoy this type of work, some avoid it if they can. Personally, I have always enjoyed representing this type of client. It is certainly my experience that defending children and young persons requires enhanced skills, both in personal terms and professionally.
The law relating to children and young persons is broadly the same as for adults, but there are vast differences procedurally and in how cases are dealt with both pre and post charge. Having an understanding of these crucial differences is key. Take for example the issue of sentencing. The law of sentencing for children and young persons could not be more dissimilar to adults. Youth custody (imprisonment), for example, is very rare for a person appearing in the youth court and can only be imposed in the Crown Court if the offence alleged is a 'grave crime.' The law on grave crimes itself is straightforward but when arguing the law in open court, this can become a very complicated exercise requiring not just an understanding of sentencing law, but an understanding of all the guidelines concerning children and young persons. There is an abundance of literature concerning how the Youth Court, the police and prosecution should review youth cases and how they should be prosecuted if charged.
Advising, assisting and applying the law to cases involving children and young persons can also be very complex. Most adults in the criminal justice system are developed enough mentally and physically to understand their actions and the consequences of their actions. That does not apply necessarily with children and young persons. When advising in such cases, you need to consider whether a young client has an understanding or an appreciation that what is being alleged is even wrong, let alone unlawful. It may be for an offence which can be committed recklessly, where a child or young person is too inexperienced to fully appreciate that a risk was being taken. Young persons' minds are not as advanced as adults. Given the frequent immaturity of a child's mind, there can be less of an understanding of what is going on around them. Some young persons because of their tender age are disadvantaged psychologically, intellectually or emotionally. If those disadvantages do not assist with whether or not the offence was committed, they will almost certainly assist when putting forward mitigation in court, or even when looking to make written representations to the police and/or prosecution to review a case in an attempt to avoid charge or further prosecution.
Where charge and prosecution cannot be avoided, it may be that reports will need to be obtained to help the court understand why a young person did act, or may have acted, in the way they did. In my experience, so many children and young persons proceed in court to be sentenced without this essential additional input. More and more children are being diagnosed with identifiable conditions which help explain certain behaviour, whereas historically such children would simply be labelled as unruly and disruptive.
Like most prosecutions, the criminal process commences with a formal police interview under caution. Children and young persons who face the prospect of an interview by the police are commonly invited to attend the police station for a voluntary interview. This avoids the need for a formal arrest and for a period of prolonged detention. The interview under caution can be the most important part of the criminal process. It is essential that children and young persons have a lawyer with them for interview, and certainly one who regularly deals with young clients. The interview with the police can be a challenge. The lawyers can make sure the police represent the allegation fairly and interpret the law correctly, and to make sure the young client fully recognises the significance of every question and is fully appreciative of any answer given.
It is equally important to instruct the right lawyer for the trial process and to ensure that the court properly recognizes that it is considering a case involving a child or young person. Children and young persons not only think differently to adults, but they act and interpret situations differently. Magistrates in the Youth Court should be magistrates trained to deal with youth cases. This does not mean that reliance should simply be placed on that perceived level of experience. Courts should be reminded that offending in children and young persons is not to be considered the same as in the case of adults.
For obvious reasons the police, prosecution and the courts treat children and young persons differently. Defence lawyers need to be equipped to do the same. Defence lawyers should engage with young clients in an appropriate and somewhat different manner, often using more simplistic and non-legal language. Defence lawyers need to understand fully the different sentencing options available to the youth court for those facing criminal prosecution and need to be confident when making representations on behalf of clients that both the law, principles and regulations governing children and young persons are applied correctly and at the right time.
David Wells
Partner
Wells Burcombe