In the name of the vulnerable

The current health crisis has inevitably engaged competing interests. The government has had the unenviable task of trying to strike a balance between individual liberties, the need to minimise infection and loss of life, while protecting our essential services, including the education and justice system.

In doing so it has emphasised the need to protect the most vulnerable. We have seen this in the heated debate about whether and when children should return to school, where the government has highlighted the impacts of non-attendance on the most vulnerable children. And we have seen it in relation to the dispersal of youth justice. But in both cases more than a few eyebrows have been raised in relation to how well these children were being served before Covid-19 changed our world.

On 31 March 2020 the Crown Prosecution Service (CPS) published an Interim Charging Protocol to deal with the demands on the justice system, with the aim of managing workload safely in a constrained context. With restrictions on staff, changing physical demands on the system and broader threats to public resources, the Protocol is supported by the Interim Case Review Guidance, which sets out how cases will be prioritised for charging decisions. Cases have been divided into ‘immediate’ cases, ‘high-priority’ cases and ‘lower priority’ cases. Immediate cases include those where there would be an application to remand the suspect into custody if charges followed, as well as Covid-19 related offences.

Unless they fall within the immediate category, cases involving young people fall within the high-priority category, meaning that the CPS will prioritise making a decision. The justification given is the need to avoid long delays in dealing with youth justice. The Interim Case Review Guidance states: “All cases involving youth offenders must be dealt with expeditiously and avoid delay”.

These documents are evidence of a system trying to adapt to an unprecedented situation. The CPS must be commended for responding quickly to a rapidly changing landscape for which no one was prepared.

In the context of the Covid-19 pandemic, there are additional risks to young people and the justice workforce. Without doubt, police station custody suites are high-risk situations. Open 24-hours a day with custody staff working in close proximity to each other and detainees, the risks of infection are obvious, especially knowing as we do now that some people can be carriers of Covid-19 but be asymptomatic.

On 2 April 2020 the CPS, the National Police Chiefs’ Council (NPCC), the Law Society, the Criminal Law Solicitors’ Association (CLSA) and the London Criminal Courts Solicitors’ Association (LCCSA) signed up to a Custody Interview Protocol.

Its aim was to assist in identifying cases where there was a need for an interview whilst the suspect was in custody, those where the interview could be postponed or those where an interview could be dispensed with all together. This exercise requires balancing the rights of those detained, the need to progress criminal investigations and the need to minimize the risk of infection.

Cases falling into the immediate or high-priority categories would generally be those where an interview was required while the suspect is in custody at the police station. In low priority cases it would generally be justified to postpone interview to a later date when it could be conducted more safely.

This means the police could justify keeping a young person in custody following their arrest in order to conduct an interview, rather than postponing an interview, as youth cases should be prioritised to avoid long delays.

It is absolutely right that long delays should be avoided in youth justice. The problem however is that this ignores the reality. Before the advent of Covid-19, the justice system was not dealing with cases expeditiously or avoiding delay. Young people are routinely kept at the police station for hours, often overnight, to then be released under investigation. What then follows is months even years of waiting for a decision.

In the middle of a global health crisis that has taken the lives of over 35,000 people, one of HJA’s clients recently received a postal charge for an offence said to have been committed three years ago when he was 14 years old. Three years is a long time in the life an adult: long enough to complete a degree. But in the life of a young person so much more can change in this period.

Any youth practitioner will have shouted at their phone after coming off a call with a custody sergeant who has made the decision to remand their young client. Another young client of HJA’s was recently charged and remanded to Court in relation to offences of being concerned in the supply of cannabis and handling stolen goods. He was charged with selling cannabis and stolen phones to undercover officers on three occasions and was arrested – some four months later – at his home address where he lives with his family.

These officers had enough evidence to arrest our client on the first occasion. The handing over of drugs in exchange for cash recorded on camera was clearly enough to charge. But instead of dealing with the matter expeditiously and avoiding delay this young person was allowed to engage in this criminal behaviour on two further occasions and was not arrested until months later. Any child engaged in selling drugs is exposed to significant risk; risk of physical and mental harm to themselves and others and risk to their future. The decisions made by these officers allowed this situation to continue.

So, when we are justifying decisions now on the basis that they are in the interest of our most vulnerable, we need to remember that in ‘normal’ times the youth justice system is systematically failing to protect the rights of many young people.

While the number of first time entrants into the youth justice system has decreased, the average length of custodial sentences for young people has increased and the number of young people held in custody on remand has increased along with the incidents of self-harm in custody. Most worrying, we know that care leavers, those with learning difficulties and BAME young people continue to be overrepresented in the youth justice system.

The Covid-19 pandemic has shone a light on what really is essential in our society and has laid bare the inequalities that existed long before we knew its name. Key services are those that cannot stop in a pandemic: doctors and nurses keep on treating, care workers keep on caring, police keep on enforcing the law, while those who come into contact with the justice system continue to have rights that need protecting. There will be much to learn from the pandemic for us all. We must recognise how much we have achieved in the most challenging of times but we must also recognise where the system was failing before the pandemic and do better.