Assisting young people aged 16 and 17 in court

2. Objectives, Values and Principles

2.1. Drivers for change

Each year approximately 8,000 16 and 17 year olds end up in the criminal justice system and courts, with limited consideration given to the positive benefits of diversionary opportunities suited to their age and stage of development or whether young people can fully engage in the judicial process.

For under 16s, an extensive range of care and support services are provided to address offending behaviour but their availability and utilisation are inconsistent. Too many people who have been through the care system end up in the criminal justice system and prison. The Prison Commission Report Scotland's Choice ^[1] highlighted that:

• prisoners are 13 times more likely to have been in care as a child;
• 63% of young people have substance misuse issues on admission to prison;
• of all prisoners 80% have the writing skills, 65% the numeracy skills; and 50% the reading skills, no greater than those of an 11 year old;
• 25% of these young people have clinically significant communication impairment; and
• approximately 88% of 16 to 20 year olds released from custody are reconvicted within two years with 45% receiving further custodial sentences ^[2] .

The Scottish Prisons Commission report, the United Nations Charter on the Rights of the Child and the Council of Europe recommend that young people under the age of 18 are dealt with outwith the adult court setting. Whilst this may not currently be possible in Scotland, we must ensure that both the child and adult systems meet the needs, and address the risks, of 16 and 17 year olds. Getting it Right for Every Child ( Appendix 2 refers) also sets out the principles for addressing the needs of children and young people. In this context children and young people are defined as all young people under the age of 18.

2.2. Objectives

Work to identify the most efficient and effective approaches to handling cases which involve young people who are appearing in court should be underpinned by the following objectives:

• to reduce the frequency and seriousness of offending by 16 and 17 year olds,
• to raise awareness and promote the robustness of non-custodial disposals;
• to ensure that children and young people appearing in court have access to proper support and information to assist their understanding and effective participation in the process;
• to promote the social inclusion, citizenship and personal responsibility of young people involved in court processes,
• to ensure that young people involved in offending get the help they need, when they need it, to ensure the best chance of achieving the above objectives, and
• to enhance community safety and reduce fear of youth offending by addressing the needs and risks of young people involved in offending.

2.3. Key principles and values underpinning this toolkit

Young people should only be prosecuted when necessary

In recent years, policy and practice in the area of youth offending has moved away from a concentration on persistence to a ' whole system approach'. As a result of this evidenced based policy shift, responses to offending by young people now form part of a wider process aimed at reducing re-offending through a range of staged interventions. Greater use is being made of children's services to facilitate interventions at a variety of stages, to ensure that services are available to young people when they need them, and that children and young people are only prosecuted when it is necessary because of the nature and frequency of their offending.

In practice this involves intervention at the earliest point appropriate for each individual by:

• Flexible Approach to Offending ^[3] and Early and Effective Intervention ^[4] , usually prior to any referral to the reporter;
• retaining vulnerable children in the children's hearing system beyond their 16th birthday for as long as appropriate, even if they continue to offend and their cooperation with agencies is poor. Non-cooperation weighs in favour of continuing, not terminating a supervision requirement.
• diverting young people from prosecution ^[5] ;
• providing alternatives to secure care and custody ^[6] ; and
• Ensuring a range of age appropriate services to address offending behaviour and needs.

Where appropriate and possible, young people involved in offending should be diverted from prosecution. In addition to the improved outcomes for young people, diversion from prosecution will also result in fewer young people going though the court process, allowing court resources and services to be used more efficiently.

Multi Agency Working and Judicial Involvement

Effectiveness and efficiency are markedly improved by agencies working together as a team and by ensuring good information sharing, liaison and communication in line with the principles of Getting it Right for Every Child ^[7] . Examples of how this currently operates for under 18s in court are provided at Appendix 4, together with an analysis of the roles and responsibilities of the principal players at Appendix 3.

At the point at which young people who offend enter the court system, judges and defence agents also have roles to play. Judges can help to ensure the effective co-ordination of key delivery agencies involved in the court process, establishing the most appropriate approach to handling cases involving young people locally, overseeing the drafting of operational protocols, ensuring regular meetings, joint training, and the evaluation of the effectiveness of the approach adopted.

Defence agents have an obligation to support decisions taken about the programming of court business involving young people, but they also have an important role in ensuring that non-custodial disposals are promoted and that young people they represent are supported and have an understanding of the court process. This is considered in more detail at section 3.4 below.

Co-ordination of procedures and protocols

Procedures and services must be co-ordinated to ensure that a timely and effective multi-agency response is provided. A co-ordinated response should be developed and agreed with the key court players i.e. judiciary, prosecution, police, court service, and social work and then reach outwards to include education, health, anti-social behaviour, housing, and voluntary and charitable intervention bodies.

We recommend that the Sheriff Principal, in his/her capacity as chairman of the Local Criminal Justice Board seek to have the Board consider how to take forward, at a local level, the implementation of the best practice commended in this report. It might be considered appropriate, for example, to set up a short term working group to ensure effective co-ordination through regular meetings and joint training. We refer to such co-ordinating machinery as an Implementation Group in this report. It is important that the Implementation Group report to the local Criminal Justice Board and could consider:

• What methods can be adopted to get cases into court quickly (section 3.2);
• Whether the undertaking procedure can be used for all appropriate summary cases involving 16 and 17 year olds (section 3.3.2.1);
• Within what timescale police reports will be submitted to the Procurator Fiscal (section 3.3.2.1);
• Within what timescale cases will first call in court (section 3.3.2.1);
• What the formal procedure should be for ensuring that all outstanding charges are rolled up (section 3.2.2.2)
• What is the appropriate period between assigning a trial diet and the date assigned (section 3.3.2.3)
• How early trial diets can be accommodated within the court programme (section 3.3.2.3)
• How progress will be measured (section 3.3.2.3)
• What procedures will be put in place to ensure that young people have support when attending court (section 3.3)
• How awareness can be raised amongst defence agents of sentencing and support options available locally (section 3.4)
• Whether a local protocol can be developed aimed at ensuring the speedy provision of address for bail purposes (section 4.4.2)
• Whether a protocol can be developed with local schools aimed at ensuring the speedy provision of information for bail information reports (section 4.4.2)
• What procedure should be put in place for the provision of bail information reports, including those for petition cases (section 4.4.2)
• How awareness can be raised of the sentencing options available locally (section 4.6).

Cases progressed as quickly as possible

Cases should be dealt with as quickly as possible to allow the young person to link the disposal with their offending behaviour. The ways in which delay can be avoided are considered at section 3.