This was the topic at a recent panel-led discussion, chaired by Tabitha Bushill of The Howard League for Penal Reform. The discussion was aimed to coincide with the consultation on the revised draft code for crown prosecutors. Panel members taking part in the debate were Alison Levitt QC, Principal Legal Advisor to the DPP, Laura Janes of the Howard League for Penal Reform and Shauneen Lambe of Just for Kids Law.

The proposed Code for Crown Prosecutors

The current code provides a series of ‘for’ and ‘against’ factors to be considered under the interests of justice test, to guide a prosecutor in the decision of whether to proceed against a youth. By contrast, the revised draft code simply poses a series of questions that prosecutors ‘should’ consider, such as the seriousness of the offence, harm to the victim, and notably, whether the suspect is under 18 years old.

Levitt’s view was that whilst the decision of whether to prosecute is always a balancing exercise between the interests of the public and the child, the new code does provide specific considerations for youths in the interests of justice section, and the code is aimed to be simpler and leaner. Lambe argued that the bar of ‘considering the interests of the youth’ was simply too low; this applied to both the current and proposed code. Art 3 of the UN Convention on the Rights of the Child provides that “in all actions concerning young people…the best interests of the young person shall be the primary consideration”; Lambe’s view is that this should be transposed into the new code.

The general view amongst attendees was that, whilst CPS central office is no doubt approaching the code with care and thought, when it is finally filtered out to the regional offices there is simply not the same weight or power of thought given to the interests of the youth. Unless the code is supervised at a local level, it will not succeed in its aims.

Lambe and Janes both made reference to the success that New York City has had in halving its annual youth entrants into the criminal justice system. Bloomberg’s view on entering office was that the initial question “can we prosecute this youth?” must be reversed so that the aim to prosecute is no longer the starting point.

Criticism of the current approach to prosecuting children was therefore two-pronged: that the policy is flawed, and that it is not in any event being applied as it should be. Janes’ view was that the code is a step in the right direction, however it is not enough to just ask whether the suspect is under 18. Consideration of the best interests of that child needs to be inserted into that.

Money, money, money

Unfortunately, as is so prevalent in the current climate, much of the debate returned to lack of funding and resources. The ‘proportionality’ aspect of the code is so often viewed as relating to the expenditure incurred in prosecution, rather than focusing on proportionality in the context of the best interests of the child. Lambe suggested that it might be of benefit to have a specialist youth prosecutor at central office who would review erroneous decisions made at local level. Levitt said that this was not realistic given the huge volume of cases, however she agreed that rigorous training was required by all regional offices.

Lack of funding is also impacting on the treatment received by youth offenders; delays of several years were cited in relation to youths in custody. The Chairman of the Magistrates Association, seated in the audience, questioned why it is that a magistrate must ask whether treatment placements are available before awarding a community sentence, yet no consideration must be given to whether there is the appropriate space and resources for a youth to be placed in custody.

With legal aid and funding cuts as severe as they are, this emotive subject does not seem one which will be vastly improved in the near future.

The deadline for responses to the consultation on the changes to the code for crown prosecutors is 10 October 2012.