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You are here: BAILII >> Databases >> United Kingdom Judiciary Speeches >> Lord Woolf, Lord Chief Justice of England & Wales : "Rights of Child Defendants" [2002] UKSpeech VQJGU (25 April 2002)
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Lord Woolf
The Lord Chief Justice of England and Wales

"Rights of Child Defendants"

Keynote Speech: Michael Sieff Foundation Conference

23 Essex Street, London WC2R

25 April 2002

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I would like to start my remarks by thanking both the Michael Sieff Foundation and Chambers organising this conference. The importance of the subject, which we are discussing today, is indicated by the people who have gathered for the conference. I read with great interest the 'Report on the Conference' hosted by the Michael Sieff Foundation on 'The Needs of Offending Children' last September. If today you manage to produce a document that is as good as the report of that conference it will be very valuable indeed.

Children occupy a special place within the law. This has not always been the situation. In fact it is probably right to say that it is only in 1908 that the first real change was made but the watershed, as far as I am concerned, came in 1933 (the year I was born). That was the year in which Parliament laid down a principle which I regard still to as being of the greatest importance and bear repeating; namely that contained in the Children and Young Persons Act 1933, section 44(1). That provision states:

That has been the flag that everyone hoists, or should hoist, in court for cases involving children.

Unfortunately it has not always been given effect to as well as it should but that principle has remained unqualified now for almost 70 years. In 1998 there was placed alongside section 44 a second principle which is acceptable because section 44 survived unscathed although it status could but has not been effected. That is section 37 Crime and Disorder Act 1998. Section 37:

(1)   It shall be the principal aim of the youth justice system to prevent offending by children and young persons

The section goes on to make it the duty of all bodies in the youth justice system to have regard to that aim. As I see it what we are concerned about today is balancing to ensure no harm is done to the older principle.

However we have to accept that at least in the past in the way we have conducted proceedings involving young and in the way we have punished them, we have not been as successful in doing this as we should have.

As to our procedures I acquit the magistracy of failure because of the way, on the whole, Juvenile Courts operate but I certainly could not in the past have acquitted Crown Courts. The reality of our shortcomings was proclaimed by the ECHR in T and V -v- UK following the Bulger trial when the European Court came to the conclusion that the way that trial was conducted, did not constitute cruel and unusual punishment, but it did result in an unfair trial contrary to Article 6 of the Human Rights Act. That trial was conducted by one of this country's most humane judges and I know he would have conducted the trial in as sensitive way as the system would permit but the European Court gave out a loud message that what we were taking for granted should not be taken for granted.

I think that credit should be given for the fact that, in a very short space of time after the judgment, my predecessor Lord Bingham issued a Crown Court Practice Direction. The Direction stressed the importance of ensuring that the trial process should not subject young accused to avoidable intimidation humiliation or distress and required the court and those representing a young defendant of their continuing duty to explain each step of the trial to the young accused and ensure as far as possible their full participation in the trial.

Subsequently the Home Office and the LCD issued joint guidance in March 2001, the Good Practice Guide, making specific reference to the Practice Direction and the need for the Youth Court, where the majority of youth cases are held, to follow the principles embodied in the Direction. We all know that there has been a very recent high profile case where we can draw a picture and see the progress that has been made by courts in recognising the principles stated by the European Court and Lord Bingham.

Many other positive steps have followed including the introduction of the excellent Young Witness pack that I would like to see extended to provide similar guidance for young defendants. There has also been the successful initiative which I applaud to halve the time which elapses between arrest and sentence and the greater recognition that there are cases where what is needed is treatment and therapy.

The improvements in case management for young offenders is only part of what is required. There are bigger and more difficult problems to tackle. Here I quote my only statistic; recent figures show that seventy-six per cent of males under 21 and 58 per cent of women under 21 re-offend within 2 years of being released [Endnote 1]. This is a terrible indictment of the system and we must find ways to break the repetitive cycle. Here I do believe that new structures including the Youth Justice Board and Youth Offending Teams introduced by the Crime and Disorder Act are very positive steps. Their arrival on the scene has resulted in recognition that failures in education lack of training and lack of employment, especially when linked to drug abuse, do influence behaviour; as does a breakdown in the family unit. Working often with the voluntary sector new initiatives are being tried out almost daily. What I find encouraging is that problems of young offenders are beginning to be tackled in a more holistic manner. However, much remains to be done and I refer back to the remarks made by Michael Lawson earlier that if we are really going to see change then we need to look at taking some of the youngsters out of the Criminal Justice System and this is quite radical.

One of my major concerns remains what happens to the young defendant when they are sentenced to custodial sentence; a matter of some importance when we have higher numbers of offenders in custody than ever before and the number could rise dramatically because of the Governments recent initiatives. Let me say straight away these initiatives have my support and the support of the senior judiciary as a whole but we must recognise this will increase the number of youngsters in custody.

Regrettably there can be no denial that action was necessary. Street crimes, crimes which can terrify the public were doing just that. This is a situation which cannot be tolerated. If the resources are provided for this then I do believe there is a need for the new powers (under sections 130/2 Criminal Justice and Police Act 2001); to remand to secure accommodation could be of value in tackling the repeat offender. It is not offender's interest that the system should appear unable to tackle them.

However what is important is that while in custody and after release proper action to tackle offending behaviour does take place. Education and training are essential and a bridge back into society which is properly structured is critical. I attach particular importance to mentoring and monitoring schemes.

We need to have open minds to new approaches such as restorative justice. In the longer term we have to consider whether the judiciary's involvement with the child after he or she has been sentenced should cease with the conclusion of the court proceedings. A possible change in the future, is a continued involvement between the sentencer and the sentenced. A continuing responsibility on the part of the judiciary to monitor the progress of the child concerned could help in breaking the vicious cycle of offending, punishment, release, re-offending and punishment again. To this end the sentencer should be given flexibility as to the action taken.

May I turn to an encouraging note based on my experience with the youngsters who having committed murder and have been detained during HM's pleasure. As a result of a transitional situation for the last year I have considered on average more than one of these tariff reviews each week. On the one hand, it is deeply disturbing to read of the offences that these youngsters have committed and the traumatic consequences for the families of their victims. On other hand, they have given me a greater insight into how young people can change and develop, particularly, if the right sort of support and structures exist. Again and again I read reports showing dramatic improvements and changes in behaviour as a result of very commendable work of the institutions where these offenders are detained. The necessary incentive for change comes from a positive interest, support and concern for a young offender's development. The consequence is that in many cases I am reducing the tariff.

It is important to recognise that we, as judges, as do members of society as a whole, have a responsibility for what becomes of young defendants after they are sentenced. That we recognise that we have a continuing duty and that we are accountable for failures resulting from inadequacies in our current system of punishment and rehabilitation.

We need to balance our responsibility for the welfare of young defendants with the responsibility of the judiciary to take into account the needs of society as a whole and the victims of a crime in particular, in determining what punishment suits the crime. Punishment for street violence in particular needs to be robust. It is also vitally important that young offenders acknowledge and recognise their accountability for the suffering of the victim as a consequence of their actions. It is a sad fact that young offenders are responsible for a substantial amount of crime in many areas.

The recent initiatives announced by the Lord Chancellor and the Home Office, supported by the senior judiciary, outlining cross-Government action for attacking street crime including the ear marking of courts to specialise in dealing with street crime in the ten areas with the highest street crime is fully justified. They will fast-track cases and provide victims and witnesses with support and facilities. The courts will have a vital part to play in ensuring that thorough and effective preparation of cases takes place. The courts will have powers to monitor the behaviour of young defendants whilst on bail. It is an example of a holistic approach to criminal justice problems of which I approve. However its real success will depend on what we achieve with the offenders after they are sentenced. If as I fear after the youngsters are sentenced, because of the pressure on the Prison Service and lack of resources, the offenders are merely warehoused; left languishing in overcrowded secure accommodation the initiative will not achieve the intended long term change we need.

For young prisoners themselves, the Youth Justice Board has demonstrated what can be achieved, by focusing on ensuring that the necessary education and training and support is made available. However the publicity with which the new initiative was announced was strangely silent as to what is to happen to youngsters when they are removed from our streets. Are the underlying problems which usually result in their descent into crime to be tackled?

We have to learn the best way to deal with these youngsters and this is where your task today starts as I leave to return to court. You have the task of bringing your collective expertise to bear to find the way forward. To identify ways in which we can achieve the proper balance between the two statutory principles to which I have referred. I wish you success and hope the results of conference reach the audience they deserve.

Endnote

1. Lords Hansard text for 5 November 2001(211105-06)

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