‘How can you punish a child for something that happened over a year ago?’ The impacts of COVID-19 on child defendants and implication for youth courts

Introduction

The project on which this paper is grounded is the first in-depth empirical study of the impacts of COVID-19 on each stage of the English and Welsh Youth Justice System. The Greater Manchester (GM) region of North-West England served as a case study area (as part of The Greater Manchester Youth Justice University Partnership (GMYJUP)), and we additionally drew heavily on national literature and in-depth interviews with national stakeholders from across the youth justice sector. ¹

This paper will focus on the key findings to emerge from the adaptations made to youth courts during the pandemic. We draw on findings from interviews across the GM region with defence solicitors, Crown Prosecution Service (CPS) staff, legal advisors, Youth Offending Team (YOT) professionals, children working with YOTs and children in custody. It is our intention that this paper will document the experiences of professionals working in the courts and children who had contact with the courts during the pandemic. We emphasise both the benefits and the challenges of the adaptations made to Youth Courts. While we concentrate on processes in England and Wales as an exemplar of the impact of COVID-19, recognising that globally, courts were experiencing similar challenges, initiates a discourse about how to re-envision their role in wider criminal justice systems in a post-COVID-19 world.

The Impact of COVID-19 on Courts

Baldwin et al. note that few courts were prepared for a pandemic. ² A paper by Sourdin et al. provides an overview of global court processes. ³ There are striking similarities across continents. For instance, a move to reduce the numbers of cases heard, scaling back cases heard in physical courtrooms, and conducting hearings remotely through remote platforms. For the first time in its history, the Supreme Court of the United States used remote technology to enable its functionality. ⁴

In their review of the literature, Harris and Goodfellow detail that almost half of all court buildings in England and Wales were closed in March 2020 as the United Kingdom entered a national lockdown. ⁵ Jury trials were suspended in March 2020 and re-introduced in May 2020 and much court business moved online and cases were stalled. However, the courts did not suspend business completely: Magistrates’ Courts initially heard only urgent work (e.g., overnight police custody cases and cases where a child was remanded in the secure estate). The Ministry of Justice (MoJ) and Her Majesty's Courts and Tribunals Service (HMCTS) moved swiftly in March 2020 to keep 157 priority court and tribunal buildings open for essential face-to-face hearings. This represented 42% of the 370 Crown, Magistrates, County and Family courts and tribunals across England and Wales. ⁶ From mid-April 2020, the senior judiciary instructed courts to prioritise listings according to three priority categories. The highest priority included urgent custody cases and the second included serious and time-sensitive youth cases, such as ‘where delay might mean a relevant age-threshold was crossed’. ⁷ In July 2020, HMCTS published the ‘Court and Tribunal Recovery Update’, which included the announcement of £142 million pounds to fund improvements to courts including improving remote capabilities. ⁸ An updated recovery plan was published in September 2020 setting out plans for more Nightingale Courts, more staff and more video technology, backed by £80 million funding. ⁹

A Criminal Justice Joint Inspection (CJJI) Report published in January 2021 provides an overview of the impact of the pandemic on the criminal justice system. The Inspectors note that by April 2020, HMCTS had provided courts with a cloud-based video platform (CVP). By May 2020 CVP had been introduced in 34 Magistrates’ courts and 12 Crown Court centres, and more than 2000 hearings in the Magistrates’ courts and Crown Court had taken place using CVP. ¹⁰ The Inspectorates note a significant decline in its use from its inception – only 15% of CPS cases were CVP applications by September 2020. A combination of court closures and the reduced use of CVP led to significant backlogs in a court system that was experiencing a growth in the backlog of cases prior to the pandemic. For instance, by December 2020, the total live CPS post-charge caseload was 67% higher than the pre-Covid baseline. The Magistrates’ Court live caseload was 83% higher and the Crown Court live caseload was 44% higher. ¹¹ On 14 December 2020, HMCTS Crown Court cases had increased to more than 53,000. ¹² Indeed, the CJJI conclude that, ‘Our greatest concern, however, remains the situation in courts, and the consequential effect this has on all our inspected sectors’. ¹³

We have written extensively elsewhere about the proliferation of needs experienced by justice-involved children during the COVID-19 pandemic. ¹⁴ These additional challenges included a lack of services provided by YOTs, increased exposure to abuse and neglect, solitary confinement in the custodial estate and, relevant to the focus of this paper, their challenging experiences of the court system. We take the notion of a child's right to a fair trial as the lens by which we detail the findings from our research. Lynch and Liefaard note that the upholding of children's rights in ‘normal times’ is a perennial threat for children in justice systems and during the pandemic this threat was magnified. ¹⁵ Despite the fallout from the pandemic having arguably had the most significant impact on children, governments across the globe failed to prioritise them in their responses. ¹⁶ Prior to detailing our findings, we will provide a short history of the genesis of youth courts followed by an overview of youth court responses to the pandemic. McHardy observes that over the first 25 years of the twentieth century, there was a global shift to create separate legal processes for children, including the emergence of youth courts. ¹⁷

The underpinnings of youth courts were non-adversarial and followed a welfare approach as the model by which children would be dealt with by the court. ¹⁸ Under Article 40 (2) of the United Nations Children's Rights Convention (UN CRC) and Art. 6 of the European Convention of Human Rights (ECHR) children have the right to a fair trial, including the right to present a defence and to effective participation in the criminal process. ¹⁹ Children should be treated differently to adults in court, and require person-centred approaches tailored to the individual needs of a child to effectively exercise their right to a fair trial. ²⁰ This could include recognition of ethnic heritage, special educational needs (SEND), mental health illness and other individual vulnerabilities. By way of context, in England and Wales, when a child (aged between 10 and 17) is charged with an offence, they will appear before a youth court. Youth courts are described as a type of Magistrates’ court and while mainly housed in Magistrates’ courts, they are less formal than Crown Courts. Members of the public are not allowed into the court (unless they have permission). They have either three Magistrates or one District Judge, and do not have a serving jury. ²¹

Earlier we detailed the responses and adaptations made by court systems across the globe. We noted that much of this involved reducing the numbers of cases coming to court and pivoting to remote platforms to undertake trials. We are interested in the impact of these responses and adaptations on children. Taking England and Wales as an exemplar, we move to detail the responses of the youth court during the COVID-19 pandemic.

In April 2020, the CPS issued its interim Case Review Guidance to be used by prosecutors during the pandemic. It stated,

All cases involving youth offenders must be dealt with expeditiously and avoid delay, which has at its core the principle that there is little point in conducting a trial for a young offender long after the alleged commission of an offence when the offender will have difficulty in relating the sentence to the offence. To maximise the impact n the youth offender, the case must be dealt with as soon as possible. ²²

Harris and Goodfellow note that youth court data was routinely excluded from the regular data published on hearings and trials during the pandemic. ²³ However, we know that the pandemic caused significant court back-logs, which were already felt acutely in youth justice systems pre-pandemic, with long delays in children's cases coming to court. ²⁴ The temporary closure of courts due to the pandemic has lengthened delays in cases coming to court. For example, in England and Wales, by the end of June 2020, Her Majesty's Crown Prosecution Inspectorate HMCPSI (2021) report the back-log of children awaiting court had increased by 55% compared with the same period in the previous year. ²⁵ The back-log of children awaiting court increased at a lower rate than the overall court backlog, which increased by 70%.

We provided details earlier in this paper about the global move to conducting court hearings remotely. The literature indicates that criminal justice professionals in England and Wales felt that remote hearings prevented defendants from participating effectively. ²⁶ The ability to monitor children and their ability to participate in their own hearing feeds into the larger issue of effective participation: The ability to understand and be involved in what is happening in court. Organisations including NACR0, The Youth Justice Legal Centre, the Royal College of Psychiatrists and the Justice Select Committee have expressed concern and caution about the use of remote court hearings, citing the impact on a child's right to a fair trial and their ability to participate. ²⁷ Lynch and Kilkelly in a small empirical study of New Zealand and Irish children's experiences of virtual hearings during the pandemic, found that the majority of children felt they did not fully understand what was happening during their live links to court. ²⁸

Harris and Goodfellow note that, ‘no government literature and limited data has been made available about the use of live links with defendants during COVID-19, and there is no specific information regarding children’. ²⁹ Indeed, an evaluation by HMCTS of the use of remote hearings during the pandemic, including their appropriateness with children was published in 2021. It makes no mention of children as a discrete group, similarly, no mention is made of youth courts (Clark, 2021). ³⁰

Methods: Our Approach

The project commenced in November 2020, a period in which the GM region was under Tier 4 COVID-19 restrictions. ³¹ Ethical approval was granted by Manchester Metropolitan University's Research Governance Committee.

We applied to HMCTS to gain approval to include legal professionals in the research. They would not grant permission for us to include Magistrates or Judges. We, therefore, undertook interviews with 14 legal professionals including seven Crown Prosecutors, three defence advocates and four Legal Advisors from the Youth Courts across the GM region. The interviews took place between June 2021 and November 2021. Interview guides included discussions about adaptations to courts, changes to individual roles, engagement with children, the use of video court hearings provision and short and long-term challenges for courts in a post-COVID-19 world. In addition, 77 interviews were carried out across the nine YOTs in GM between January and May 2021. We ran three participatory workshops involving 11 children aged between 16 and 17 who were working with a GM YOT. We undertook research in a Youth Offending Institute (YOI X) and a Secure Children's Home (SCH A) between March 2021 and January 2022. This involved 14 interviews with YOI X staff and a participatory workshop was facilitated on-site for six children aged between 16 and 17, each of whom had been in custody since the start of the pandemic. The research in SCH A involved telephone interviews with seven members of staff. In total, 21 children aged between 15 and 17 were either interviewed via Zoom or took part in three participatory workshops held on site.

The Findings

Our analysis demonstrated that adaptations made to court processes throughout the pandemic were of direct consequence to child defendants, both in terms of how their cases were managed and how they personally engaged with the courts. In what follows, we seek to present a balanced consideration of the benefits and disadvantages of the adaptations, as they relate to the children. ³³

Court Delays

GM legal professionals routinely commented that they felt that the Magistrates’ Courts had returned (almost) to normal relatively quickly, which they attributed to the variety of ways in which HMCTS had adapted its processes as part of its recovery plan. Key to this plan was the reduction of the back-log of cases to be heard. One solution implemented was to deal with blocks of cases represented by the same firm of defence solicitors. This meant that only a single defence advocate and prosecutor were needed for multiple trials, all of which were reviewed in advance to ensure they would be effective on the day of trial.

The trial work is a different kind of kettle of fish altogether because trial work is always more difficult because you’ve got a lot more factors in play. So, getting one particular defence firm and saying, ‘tell us all the cases that you have. We’ll re-review them. We’ll have these discussions. Is there any resolution?’ And then took those all into court. So, you just had one defence listed, one prosecutor, both had discussions about cases. They were all reviewed and ready to go. (Crown Prosecutor)

Professionals also expressed concern over the reliability of a child defendant's memory over time, and clearly delays to hearings exacerbated the situation:

I have had a couple of cases during the course of this, when you're asking a youth about something that happened eighteen months ago and invariably, they don't know the answers because it was eighteen months ago. … I definitely saw a few where I kind of thought, yeah, this is, definitely, going to hurt your case on the basis that it is just tougher to remember something that long ago. (Crown Prosecutor)

One defence solicitor was untroubled by there being a potential advantage to a child.

I think that young people have had to put up with an awful lot over the past 18, 19 months and if some of them have benefitted slightly because their case took many, many months to be finalised, well, so be it and that's the least that society can do for them. (Defence Solicitor)

Prioritisation of Court Business

Except for custody hearings, there was a degree of uncertainty amongst GM professionals in terms of which youth cases should be further prioritised. Some professionals believed youth hearings were simply relisted in the same order as originally listed, whilst others felt that additional factors were considered throughout the listing process, including the seriousness of the offence which would determine the case being sent to the Crown Court. For instance, one Crown Prosecutor explained that since the Youth Courts hear most offences, s 20 assaults (i.e., Grievous Bodily Harm) and murders, they needed to be identified as a priority for sending to the Crown Court. However, another Crown Prosecutor felt that prioritising cases were of minor importance, given the potential impact on each individual child. It is well established that for child defendants, cases must be dealt with as soon as possible in order to maximise the impact on the child (CPS, 2020). ³⁴

To be honest it doesn’t really matter what the offence is because one youth defendant who is charged with a serious robbery and knife crime can just be as impacted as somebody who has never been before the court before and charged with simple criminal damage. It can be just as impactive on both of them for different reasons, so no, we don’t look at the offence and think right you need to go first. As long as you’re not in custody we’ll just try and get them through as quickly as we can. (Crown Prosecutor)

Children's Engagement with the Courts

A discussion of children's engagement with the courts during the pandemic cannot proceed without a consideration of the impact of remote hearings conducted over the CVP, and indeed a good deal of research has started to emerge which focusses exclusively on this area. ³⁵

Social Distancing Requirements

Some Youth Courts moved physically into another building or another court within the same building. This was largely to accommodate the greater number of participants in youth hearings compared to adult hearings, which was difficult in Youth Courts which were smaller rooms. It was interesting for inter-viewees to reflect on the impact for children having their case heard in the Youth Court whilst being situated in the physical space of an adult courtroom.

You know, in the old courts they were on a chair with their mum or their dad or their carer or social worker, and they’d be huffing and puffing. Just normal, like totally normal … Oh, this is ridiculous. F this and F that. And I think they’re probably quite scared when they walk in there [adult courtroom]. Some might say, not always a bad thing. But it's not what we’re meant … it's just not, you know, what we’re meant to do, you know. I think they probably are scared. So, they’re probably quieter. But, you know, on the flip side, they’re probably less engaging aren’t they because of it … like I say, you know, that intimidating courtroom, maybe their response has changed. Maybe they’re less engaging or engaged with the bench or the judge. (Crown Prosecutor)

Social distancing for those children on remand in custody who were on trial during the pandemic, presented a range of challenges. For those who did not want to use CVP or could not (because their institution did not have the capabilities), were contending with myriad unfamiliar changes to how the court worked and what it looked like. For instance, the wearing of PPE and conversing with legal teams behind glass screens.

We had to wear masks, gloves, and aprons because if we didn't, we'd have to come back (to custody) and isolate. So, we had to wear the PPE, so we didn't have to isolate. All the court staff and that were always with the PPE equipment on. We was just always in the dock, but there was three rows, say one was on the end of the first row, and then one was in the middle of the second row, and one was on the other end of the third row. So, it was social distanced.’ (16-year-old boy SCH A).

Discussion and Conclusions

The situation that arose throughout the pandemic – and the impacts created as a consequence raise a number of questions to consider about what the courts will (or indeed, should) look like in a post-COVID world. Amongst our participants, the short-term challenges related to the continuing impacts of delays and dealing with back-logs, although the overwhelming perspective from interviewees was that the back-log in the Youth Courts in GM was largely resolved. However, the national picture shows that the delays in the Youth Courts were a pre-existing problem that COVID-19 exacerbated. Indeed, the most recent youth justice statistics for England and Wales illustrate that the average time from offence to completion at court was 217 days, only four days lower than the previous year and well above pre-pandemic levels. ⁴⁰ This is concerning given that the evidence demonstrates the impact of delays on child defendants and especially on their mental wellbeing, quality of their evidence, and an increasing disaffection with the criminal justice system. ⁴¹

Our research demonstrates that while courts moved swiftly to adapt their service delivery during the pandemic ⁴² less is known about the quality and appropriateness of the service that children received. Gagnon and Alpern detail the creativity that courts drew on to respond expeditiously to the pandemic. ⁴³ However, in an English and Welsh context, we would argue that this creativity failed to account for a child's right to a fair trial. Utilising adult courts for child proceedings during the pandemic re-ignites the debate from the 2016 Taylor Review about the suitability of the Crown Court for cases involving children. We concur with the Taylor Review and its recommendation that cases involving children should only be heard in the Youth Court. While the protection of public health was the priority of the courts during the pandemic, we assert that HMCTS should have done more to ensure that children were not absorbed in the milieu of processes and legislation designed overwhelmingly for adult defendants.

The global response of courts to the pandemic serves as a reminder of the welfare origins of youth courts. ⁴⁴ In 2014, Lord Carlile's report stressed that Youth Courts ‘are only able to focus on the offence, and not the child and the wider circumstances contributing to their behaviour’. ⁴⁵ The combining of the Family Court with the Youth Court has long been mooted as a possible solution to better court outcomes for children however, Bateman suggests that a merger of the two could risk drawing more children into the court process and subsequent compulsory interventions. ⁴⁶ The Justice Select Committee of the UK Parliament in their report on Children and Young People in Custody, 2019–2020, recommended the introduction of direct recruitment to the Youth Magistracy, enabling Magistrates to specialise in the youth justice system from the outset (Magistrates currently have to sit 2 years in the adult court before being considered to sit in the Youth Court). ⁴⁷ Our findings demonstrate that legally qualified District Judges as opposed to Lay Magistrates were used increasingly in the Youth Courts during the pandemic. This decision was taken from a social distancing perspective rather than in the best interests of the child. The decision further emphasises the lack of a distinctive child-focussed response. Specialist advocacy for legal professionals working with children should be mandatory as part of legal qualifications and training. Children's effective participation in court is too often at risk, and a lack of specialism and understanding of children's needs is impacting children's experiences and outcomes.

In terms of CVP, the national literature indicates that even before the pandemic, concerns were raised about the impact of live links in exacerbating existing difficulties (e.g., mental health conditions, neurodiverse conditions, cognitive impairments), which may have prevented child defendants from participating effectively in their hearings and trials. ⁴⁸ These concerns are manifested within GM following the increased use of CVP. We therefore suggest that the current plans in the UK Parliament's Police, Crime, Sentencing and Courts Bill that will embed the expansion of virtual justice are premature. Professionals are overwhelmingly in favour of physical court appearances for children. A robust evaluation of remote justice is needed to assess its strengths and limitations with a particular focus on whether it is appropriate for use with children and in their best interests.

To conclude, the COVID-19 pandemic has laid bare the need for a full review of the functionality of Youth Courts across the globe. Our exemplar of the English and Welsh youth courts and our case study of GM's experience demonstrates an urgent need for renewed consideration of what support children need to effectively participate in court, and where and how children's cases should be heard. It has demonstrated that creativity is possible and creates a timely opportunity to review the evidence and think more radically about a welfare-based, trauma-informed court process for children. In their paper ‘Reimagining Youth Justice’, Gagnon and Alpern focus on the impact of COVID-19 and its potential for judicial policymaking and reform. ⁴⁹ They provide a quote from the Hon. Edwina Mendelson, Deputy Chief Administrative Judge for the Office of Justice Initiatives in New York State – ‘The word ‘reimagining’ rarely arises in the judicial context’. ⁵⁰ We contend that a re-imagination is exactly what is needed to address a child's right to a fair trial.