Leveson 2 and youth justice

With the vigorous debate around the removal of right to trial by jury, it is easy to overlook some of the other recommendations presented in the Independent Review of the Criminal Courts: Part II – dubbed “Leveson 2”.   

In this Children's Mental Health week, I discuss below some sections of the report which caught my eye regarding how the criminal justice system treats those under 18. While his Sir Brian Leveson’s report was not intended to focus on measures specifically for this cohort, several of the comments and recommendations are helpful and, if adopted, would be a move in the right direction for those of us who work with children. However, challenges do remain for Youth Justice and we cannot lose sight of the fundamentals which must change.  

Remote police station advice

Leveson recommends that changes are made to enable defence lawyers to have the option of providing initial advice at the police station using a remote video link – where appropriate (Recommendation 63). It is a relief that vulnerable persons including those under 18 would not be caught by this recommendation which is, in itself, a cause for concern; not least because it will be difficult, if not impossible in many cases, for solicitors to adequately assess over the phone whether a client who has just been arrested has a particular vulnerability. Moreover, most people arrested and facing an interview under caution are sufficiently vulnerable by virtue of the state power being exercised upon them to require in-person legal advice (as a minimum protection).

Out of court resolutions

It is welcome that standard training for police officers is recommended to ensure better administration of Out of Court Resolutions (OOCR) for children (Recommendation 178). No one could argue against this. Out of court disposals are the primary mechanism whereby the criminal justice system demonstrates sufficient elasticity to recognise that children should be allowed to make mistakes without facing a lifetime of stigma. It was a welcome change in 2020 when youth cautions became spent immediately upon receipt, meaning that they do not appear on a Basic or Standard DBS Check and do not automatically appear on an Enhanced check.

Note, however, that where an ACRO certificate is applied for (for example as part of an immigration application), youth cautions will remain disclosed for 5 or 10 years depending on the category of offence. Even where this time period passes, the results will come back as ‘No live trace’ rather than ‘No trace’ meaning that the individual may well face questions about what matters from their childhood are not 'live.'

Rehabilitation 

One recommendation that I particularly welcome is Leveson’s call for a review of the current legislative policy for rehabilitation periods of criminal records applicable to defendants who committed offences when they were under 18, irrespective of their age at conviction (Recommendation 179).

At present it is a cruelty to children that their solicitors must argue with and remind the police about the importance of progressing an investigation (which sometimes takes years) before they turn 18 because they will be treated less favourably after this turning point. Progress in this area remains slow and the harsh penalty a child faces of receiving an adult disposal because the system is riddled with delays is unconscionable.

What is missing and beyond the scope of Leveson’s review is a serious discussion about the age of criminal responsibility. Anyone who has sat in a police interview with a 10-year-old has felt the insanity of it.

Putting to one side the obvious moral and scientific (eg brain development research) reasons for increasing the age: if we raised the threshold, significant resources could be saved. In theory, children caught up in the criminal justice system should be receiving support from social services and mental health services concurrently. However, the criminal justice system on top of that is inefficient, cruel and unnecessary.  

There is plenty of scope for a review of this critical issue in future. Sadly, various Private Members’ Bills  hoping to address this area have not succeeded in the past. What is needed is a full-scale legislative review. As Leveson states: “ diverting children and young people from crime should also be central to any government’s long-term vision to tackle crime in the UK.”

It is surely time to revisit the age of criminal responsibility and have a serious discussion about the way in which the law in this country is out of step with neuroscience, child psychology and recommendations from the UN Committee on the Rights of the Child. In criminalising some of the most vulnerable children from age 10 we are outliers in Europe. If appealing to policy makers’ compassion and the science is not enough of an effective route, then perhaps highlighting the resources saved might hold some weight.