Children and the Law: The right to a fair trial and protected welfare


In England and Wales, youth criminal proceedings occur to prevent offending and reoffending by those aged between ten and seventeen (s 37(1) of the Crime and Disorder Act 1998). Having regard to this statutory principal aim, it is important that the courts have the power and discretion to investigate, prevent and punish crime. To prevent abuses of such power, the courts must fulfil their statutory obligations to have regard to both welfare (s 44(1) of the Children and Young Persons Act 1933) and fairness(Art. 6 of the ECHR). As the nature of trial proceedings are adversarial, this creates a tension between the rights of children and the youth justice process that sets out to ascertain guilt. This tension is aggravated further by the politicisation of youth crime, which emphasises the competing interest of the public. This negatively impacts the extent to which the rights of a child can be respected as both fairness and welfare must be balanced against public interest. This can have implications for the rights of those involved, and, in particular, young defendants which this article focuses on.


The Law


A fair trial


A fair trial is an integral part of the English legal system, dating back to 1215 when it was first documented in the Magna Carta. Ever since, fairness has been protected through safeguards, such as that enshrined in Art.6 of the European Convention on Human Rights (ECHR), which became legally binding through incorporation into domestic law by the Human Rights Act (HRA) in 2000. Under this Treaty, the basic tenet of a fair trial is that the defendant must understand and effectively participate in the proceedings. The overriding objective of criminal proceedings, encompassed within s 1.1(1) of the Criminal Procedure Rules (CrimPR), is to deal with cases justly. This involves dealing with both the prosecution and defence fairly (s. 1.1(2)(b) of CrimPR), and recognising the rights of a defendant, particularly those under Art.6(s 1.1(2)(c) of CrimPR). This is reflected in the right to equality of arms which upholds the rule of law in ensuring that the law is applied in parity.

If they are denied of such rights, the trial will be rendered unfair as illustrated in the influential case V and T v UK of the Bulger killers, with a vote of sixteen-to-one. In this case, two ten-year-old boys where charged for the abduction and murder of a two-year-old. Importantly, Lord Reed held that ‘consideration must be given to the age, maturity, intellectual and emotional capacities of the child charged’. This is significant not only because it was the first time the European Court of Human Rights (ECtHR) criticised the UK for its trial procedure, but also because it has influenced much of the approach since.


Welfare


The right to welfare is an integral part of human rights law. It acknowledges that individuals have intrinsic worth, and thus a core concept of dignity that cannot be violated. Such rights are protected by common law, the HRA, and the European Union Charter of Fundamental Rights (CFR). Since the English legal system has no protections of children’s rights at common law, compliance with the ECHR and CFR is of fundamental importance, especially for a defendant. In complying with the rights guaranteed by the European Convention, the United Nations Convention on the Rights of the Child (UNCRC) must also be considered when interpreting and applying such rights in domestic law.


Problems


Disparity in the treatment of child defendants


Special measures are trial arrangements put in place to modify a court to be fit for purpose. This involves ensuring that all participants can effectively participate and understand the proceedings. Despite a duty to ensure this, child defendants are not automatically entitled to such measures, as was the case in C v Sevenoaks. Defence Lawyers can argue that modifications available to child witnesses through special measures should also be available to child defendants to ensure they do not suffer injustice through inequality of arms, and instead receive a fair trial (R(S) v Waltham Forest YC). However, in practice, this rarely happens and this article focuses on two main measures, the latter of which demonstrates this.


The first is the use of a live-link, which enables evidence to be given during the trial through a televised link, or secured technology, to the courtroom (s. 56 of YJCEA). Since the Police and Justice Act 2006 inserted S.33A into the Youth Justice and Criminal Evidence Act 1999 (YJCEA), this protection has been extended to include defendants in all courts. This is a significant improvement from the previous intentions of Parliament to exclude defendants from such provisions. This was demonstrated in R(S) v Waltham Forest Youth Court where a thirteen-year-old with serious learning difficulties was declined the protection of special measures due to a lack of court power, despite being too terrified to give evidence in the presence of her co-defendants. However, the new provision is subject to conditions, including whether it is in the interests of justice and will enable more effective participation in the trial (CrimPR 2015). Despite an improvement towards greater parity, this gives the court a wider discretion than that afforded to witnesses under S.24 YCJEA, leaving a defendant’s right to a fair trial in the hands of a potential abuse of power. However, under the recently amended CrimPR, the defendant is allowed an opportunity to have a practice session before using a live-link to submit their evidence. This suggests progress is continuing towards greater respect of a child’s right to a fair trial despite it being slow.


More controversially, the second measure is the appointment of an intermediary who assists the giving of evidence at court and provides communication assistance through explaining questions or answers in so far as is necessary to enable them to be understood (s. 29 YJCEA). The Ministry of Justice provides trained and accredited intermediaries for child witnesses, but such legislation does not extend to include defendants. This imparity means that defendants, if they even gain access, tend to have non-registered intermediaries under a complicated and patchy common law provision. This difference was contended to be unlawful in R (OP) v Secretary of State for Justice (2014), though the Divisional Court held that this was only applicable for the giving of evidence rather than the whole trial, which again highlights the imparity in treatment. As demonstrated by Waltham, one can argue that defendants who are doubly vulnerable are more susceptible to the inherent difficulties arising from criminal proceedings, and thus appointment of an intermediary is of fundamental importance for them to effectively participate and understand. This includes defendants who are compounded by other vulnerabilities aside from their age and level of maturity, such as those with mental health problems, which are at least three times higher in the youth justice system, and communication and learning difficulties, which are prevalent in over 60% of young offenders (Bryan, Freer and Furlong 2007). The vulnerability of such defendants was highlighted by the Bar Standards Board, who stress that advocates should possess knowledge and awareness of children (Youth Proceedings Advocacy Review 2015). This is significant since the right to a fair trial will still be undermined through use of a live-link, as children with such vulnerabilities will be better supported by an intermediary. Yet, as the law stands, the involvement of an intermediary is not mandatory, and absence does not render a trial unfair (R v Cox). Promisingly, S.33BA was inserted into the YJCEA by the Coroners and Justice Act 2009 which would entitle a defendant to an intermediary in limited circumstances. This would include circumstances in which a defendant’s ability to effectively participate was comprised by mental disorder or impairment of intelligence (CrimPR 2015), in order to respect fairness to a greater extent. However, this provision has not yet been implemented. This illustrates the slow progress concerning defendants, yet the courts continue to hold that they have an inherent power to allow such a special measure, and thus statutory underpinning is not necessary (R v Camberwell Green Youth Court ex parte D 2005). In practice this rarely happens, as was reflected by Lord Chief Justice’s amendment to the Criminal Practice Direction in 2016, which stated that the use of the court’s inherent powers to direct an intermediary will be rare due to their scarcity. When such directions are ineffective, it remains the court’s responsibility to adapt the trial process to facilitate the defendant’s needs.


Reporting Restrictions


Art.6(1) of the HRA states that defendants are entitled to a fair and public hearing. It is often said that this allows for transparency and thus lowers the risk of abuse of power, since justice can be seen to be done. However, Art.6 is a limited right. This means that, under circumstances, the public requirement can be limited, such as when it is in the interests of the juvenile. This is reflected in other jurisdictions. For example, the African Charter on the Rights and Welfare of the Child explicitly states that the press and public should be prohibited in trials concerning children. Domestically, S.49 Child and Young Persons Act (CYPA) places an automatic restriction upon reporting, including online content, which can result in identifying a person under 18 in the youth court. The problem lies within the Crown Court where this power is extended to apply by S.45 YJCEA. However, it is a discretionary rather than an absolute power and thus it is open to abuse since it relies on what the court deems appropriate. Complying with its statutory obligation, the court must have regard to welfare which favours a reporting restriction. Therefore, any decision to lift this must be both proportionate and necessary. However, it is also balanced against the public interest (s. 52 YJCEA 1999). This is an issue since children are particularly susceptible to stigmatisation and criminological research into labelling processes have provided evidence of detrimental effects, and thus more weight should be given to their welfare and rehabilitation instead. However, in a recent case of R (F and D) v Leeds Crown Court (2016), the court recognised that lifting anonymity would have an impact on a child’s welfare, which is a relevant consideration when balancing against the public interest. Though, Mr Justice Globe did state the limited deterrent effect due to the rarity of the offence as a justification. This can be compared to the previous case of R v Cornick (2014), where reporting restrictions were lifted due to the deterrent effects.


After a child has turned eighteen, whether during or after proceedings, S.45 ceases to apply. S.78 Criminal Justice and Courts Act 2015 inserted S.45A YJCEA. For witnesses and victims, this provides lifelong anonymity if the quality of their evidence or cooperation will be diminished by fear and distress in connection with being identified. However, the defendant is excluded from this provision, illustrating a further lack of parity in the treatment of defendants. The Standing Committee for Youth Justice states that this creates serious safeguarding implications. One can argue that this makes sense, since this enables child defendants to be identified at eighteen, which could negatively impact their rehabilitation and reintegration prospects. This is supported by the UNCRC who argue that the traditional objectives of criminal justice must give way to such prospects rather than retribution. Thus, not granting lifelong anonymity allows the press to impose further punishment (R(Y) v Aylesbury Crown Court (2012)). This is particularly significant in regards to online content, as they will no longer be prohibited from being identified online. This would enable repercussions of a mistake that has been learnt from, to haunt the defendant for the rest of his life. The importance of this has been illustrated in the issuing of new identities to those who have committed serious crimes, such as Mary Bell in 1968, and Thompson and Venables in 1999. However, this can be compared to Cornick, a fifthteen-year-old who was identified for murdering his teacher in 2014. Such inconsistencies are a clear illustration of how balancing public interest against the rights of the child can create tension in upholding the statutory aim of the youth justice system, and thus a change is needed.


Compliance


The UK governments’ compliance with the rights of a child discussed above remains piecemeal and reluctant. They argue that the system is heading towards greater compliance with such a Treaty, with for example the introduction of the Children’s Act 2004. This introduced the role of a Children’s Commissioner whose primary function is to promote and protect the rights of children, whilst having regard to the UNCRC. The spirit and language of the UNCRC has also been argued to be translated into domestic law through S.11 which places a duty upon public bodies to have regard to the need to safeguard and promote the welfare of children. However, this does not extend to criminal proceedings.


A further concern is recent proposals to repeal the HRA, opening the system up to abuse, and replace it with a domestic Bill of Rights in order to restore constitutional balance. This would severe the link between the UK and Strasbourg court, and thus the link with the UNCRC. Any compliance with the ECHR and HRA would cease to exist, leaving children’s rights protected only by the CFR.


The CFR can apply directives that the UK implements into domestic law. By virtue of the Lisbon Treaty the UK has a right not to participate in EU justice measures. This is illustrated by the UK’s decision to opt out of the proposed directive that, in response to the Stockholm Programme, sets out specific minimum rules concerning the rights of suspects or accused who are children in criminal proceedings. This is to be implemented considering the best interests of the child, and would have extended the extent to which the right to a fair trial and welfare is respected. This is significant as the UK implemented Directive 2012/29/EU, which established minimum standards on the rights, support and protection of victims. This illustrates that the problem is not in missing guidelines but in the implementation of them by the UK, which adds to the disparity in the treatment of child defendants.


Additionally, the CFR may cease to apply because of Brexit. Therefore, if both the proposed Bill of Rights and hard Brexit go ahead, children’s rights will be left unprotected and open to abuses of power. This will reduce the extent to which criminal proceedings respect both a child’s right to a fair trial and welfare even further.

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