Children under 18 years old are afforded a number of special protections by virtue of the fact that they are children in the eyes of the law. These protections fall away when an individual turns 18 and they are legally considered an ‘adult’. For defendants who cross the threshold into adulthood during the criminal process, the impact of reaching this milestone can be profound.
On 23 February 2021, a Bill was launched in parliament by MP Rob Butler which seeks to ensure that young people who commit crimes before they turn 18 continue to be subject to the jurisdiction of the youth court and to youth sentencing guidelines. This would be a very welcome change to the law as, currently, defendants are dealt with according to their age at the date they first appear in court and enter a plea. This was described as an ‘anomaly’ in the law by the MP and he stated that it would be a ‘relativity simple change to make in legislation.’
However, according to a report published by Just for Kids law and the Youth Justice Legal Centre, system delay is the main reason that children turn 18 between the commission of an offence and prosecution. This means that young people are losing important protections due to circumstances which are no fault of their own. While this change in legislation would mean that crossing the threshold into adulthood would not cause the automatic loss of these protections, it does not address the root cause of the issue which is that youth cases are simply not being dealt in a timely manner. We suggest that while this Bill is extremely positive, there are a myriad of wider issues which must be resolved if the youth justice system is to function properly.
The current system
Rob Butler MP rightly explained that ‘the arbitrary cut-off date of a young person’s 18th birthday immediately affects both the type of court that deals with them and the range of sentences available. But there can then be a longer-lasting impact on the chance of rehabilitation, the likelihood of getting a job and the prospect of forever having to disclose a mistake from the past due to the rules on criminal records.’
We have blogged previously about the need for specific sentencing guidelines to deal with young adults and that turning 18 is not a ‘cliff edge’ upon which an individual magically gains maturity overnight (here and here). However, there remains a binary division between how a young person is treated in the criminal justice system before and after they turn 18 years old.
Perhaps most notably, for a child suspect (under 18 years old) there is a presumption in favour of diverting that child away from prosecution by offering an out of court disposal. Young people who turn 18 are no longer eligible for the types of out of court disposal they would have been given had their case progressed sooner. For example, youth cautions and youth conditional cautions are only available to children aged between 10 and 17 and cannot be given to 18 year olds regardless of their age when the offence was committed.
Child suspects are also predominantly dealt with in the specialist youth courts, which are designed to be less intimidating than adult courts and members of the public are not allowed to attend (unless they have specific permissions).
If a young person enters a plea after they turn 18 they will be dealt with by the adult court regardless of how old they were when the alleged offence was committed. Crossing the threshold into adulthood before the first court appearance also brings about the loss of the right to anonymity as well as potentially facing adult sentences and longer supervision periods.
Does this Bill go far enough?
If we ask whether this new bill would make a difference, the answer to that is a resounding yes. Enshrining in law that young people would continue to be subject to the youth justice regime, regardless of whether their first court date comes after their 18th birthday, would be hugely beneficial for the many children and young people who currently have a criminal investigation hanging over their heads, some of them for most of their formative late teens.
Nonetheless, it does raise a more fundamental question regarding the wider issues with the youth justice system. This is a live issue as the coronavirus crisis has only compounded the already critically long backlogs of cases, with it not being uncommon for defendants to be tried for offences they are said to have committed four years ago or more. While reform of this aspect of the law would of course be welcome, images of sticking plasters and gaping wounds come to mind.
Why are young people facing long delays?
A key contributor to the delays is that police forces are not properly funded to carry out effective and efficient investigations, which leads to children and young people being left in limbo for years as their cases are not progressed. This is compounded by the fact that the vast majority of officers who deal with child cases are not youth specialists. In the competing priorities, particularly given the complexity of child cases, the child is often left to linger – children don’t complain and cannot vote. We would also like to see the CPS adequately prioritise youth cases and seek to resolve all cases involving children in a timely manner –there should not be a timescale to aim for, beyond which, an explanation ought to be provided and reviewed by a senior officer. There is currently no system by which the processing of youth cases are fast tracked by the CPS, not even those who could be flagged as being close to crossing the adulthood threshold. Both of these suggestions would be a simple policy change which would have a huge impact on the young people affected.
The fact that the police and CPS are taking months, or even years, to make a charging decision in relation to a young person is simply unacceptable. The delays are unjust for complainants and defendants alike and the old maxim ‘justice delayed is justice denied’ is particularly apt for youth offenders waiting years for a charging decision.
Once a charging decision is made, a young person may face even further delays as they await a court date. Positive though it is, it evidences the dire catastrophe we skirt each day that, HM Courts & Tribunals Service (HMCTS) produced an action plan in response to the coronavirus pandemic in order to try and manage the mounting backlog of cases and stated that wherever possible priority is given to listing time-sensitive youth cases where children are approaching the age-threshold. Practitioners are being encouraged to use this very helpful form (found here) to flag to HMCTS when a listing is urgent on the basis that a youth is approaching 18 years old.
Why is this important?
Being under criminal investigation is of course an extremely distressing experience for anyone. But for a child, no matter how sophisticated they might think they are or they might be perceived to be, the uncertainty of a criminal investigation can dominate an extremely formative period of their life when they are already undergoing significant personal, emotional and cognitive development. Punishing a young person at 18 for something they did when they were 15 doesn’t help anyone. Set against what neuroscience tells us about the considerable amount of maturation and development happens during adolescence, showing a natural desistance in impulsivity and risk taking, the delays mean we have missed the opportunity to learn and teach what could have been lifelong positive messages. The injustice caused by delays in the justice system, which are outside of the defendant’s control, are compounded if the young person involved ends up being treated as an adult by the courts for conduct that occurred when they were a child.
Whether the bill proposed by MP Rob Butler will be passed remains to be seen. If it is, this will of course be very positive news for the many children and young people who are currently subject to a criminal investigation.
However, I would suggest that this is treating a symptom of our collapsing criminal justice system rather than curing the disease. Proper funding for the youth justice system is needed, and it is needed urgently. It will take more than this Bill, albeit welcome, to ensure that the justice is delivered effectively and efficiently for children and young people.