A new report: A fairer way; Procedural fairness for young adults at court

‘How do we reduce the amount of reoffending young adults in England and Wales?’ is the question  Jo Thomas, Claire Ely and Ben Estep, who work for the Centre for Justice Innovation, answer in their report ‘A fairer way; Procedural fairness for young adults at court’ The report sets out the rationale and method for implementing and testing a procedurally fairer way to hear the cases of young adult defendants in the criminal courts in England and Wales. CEP interviewed author Jo Thomas about the research she and her colleagues have conducted.

How did you came up with the idea to research this topic?

The idea originated through conversations between the Transition to Adulthood Alliance (a coalition of criminal justice, health and youth charities convened by the Barrow Cadbury Trust) and the Centre for Justice Innovation. They collated strong evidence from a range of research disciplines showing that young adults are a distinct group with needs that are different both from children under 18 and adults older than 25. It has used this evidence to help establish a growing consensus that criminal justice system responses to the behaviour of young adults should adjust to reflect this evidence.

What became clear during these conversations was that, as in other parts of the world, English and Welsh justice policymakers and practitioners have not been immune to the evidence and the wider developments to treat young adults as a distinct population. There have been a number of changes to practice such as the inclusion of maturity as a mitigating factor in adult sentencing decisions since 2011 and the Crown Prosecution Service taking maturity into account as part of its public interest test since 2013. Yet despite these changes, there remain significant areas of criminal justice practice in England and Wales which have failed to recognise young adults’ distinct needs. One such area, in contrast to some other European countries, is that allocation of young adults within the English and Welsh court system into the adult court system, and their treatment therein, is entirely driven by age, rather than in specific response to developmental maturity or needs. This means young adults who are developmentally distinct are treated exactly the same as older, fully mature adults.

How was the research carried out?

The research was in two phases. The first was that, inspired by the differing and innovative approaches being adopted in different jurisdictions, the Barrow Cadbury Trust commissioned the Centre for Justice Innovation to assess whether a distinctive young adult court process could be developed within existing legislation and resources and, if so, what the evidence suggested it should look like. To do so, we examined the evidence base for a tailored court process for young adults and reviewed the legal framework around youth and adult courts to see if existing youth court practice could be adapted into it without legislative change. We then worked with stakeholders in one court to look at the operational and administrative feasibility for providing tailored arrangements for young adults. This initial research led to the conclusions that a more procedurally fair, distinct court process for young adults could be effective in reducing reoffending, was possible, and had support from key stakeholders.

However, it also identified that more detailed work was needed, at a local practitioner level, to determine what this process could and should involve. Therefore, with further funding from the Barrow Cadbury Trust, we embarked on a second phase of work to engage practitioners and young adults themselves, as experts in what was desirable and possible, in order to co-design, in detail, what a distinct, procedurally fair court process for young adults could look like. The aim was to produce a model that could be tested to see if it reduced frequency and severity of reoffending of young adults.

You produced the model, will it be implemented in England and Wales?

Our ambition is that the model be tested to determine whether it impacts on perceptions of fairness and consequently enhances perceptions of legitimacy of the system and future adherence to the law. The decision regarding testing remains with the Ministry of Justice and the Judiciary. The Secretary of State has recently agreed to convene an officials group with local police and crime commissioners to consider the issue. In recognition of the fact that good implementation is a prerequisite for effective delivery, the sites also identified what would be needed to test the model. This involves a ten step plan that can be found in the full report.

To support implementation, the Barrow Cadbury Trust has made template documents, advice and support, and contribution towards implementation costs including consultancy support available upon application to the Centre for Justice Innovation. It has also tendered for an independent evaluator to test the impact of the model. At the time of writing, securing the appropriate research approvals for this evaluation is on hold while the Ministry of Justice, the court service and the senior judiciary consider whether they wish to test the model.

What does this model look like?

In the model, all young adults aged 18 to 24 at date of charge being prosecuted either through the Crown Prosecution Service or National Probation Service (for breaching existing orders) and scheduled to appear at magistrates’ court would be eligible, regardless of anticipated plea. Exceptions would be made for some cases such as those on remand or in existing specialist courts. The model includes the following core features:

• Grouping young adults’ hearings into a nominated sitting each week, using an existing Transforming Summary Justice court sitting and in line with existing timescales;
• Holding a pre-court meeting on the nominated day to identify any communication needs, reports to be prepared, and those known to be unrepresented;
• Preparing young adults for the opportunity for direct engagement with the bench;
• Ensuring timely probation reports are completed that take into account maturity in line with the current probation instruction;
• Enhancing engagement during the hearing itself through such means as having practitioners in the room with an understanding of young adults’ specific needs, checking young people’s understanding more effectively, explaining the roles of those in the court room where appropriate and giving young adults an opportunity for direct engagement with the bench;
• Following up after hearings to check understanding and next steps; and
• Supporting voluntary take-up of community services that are available locally to tackle wider needs that may be contributing to offending behaviour.

What kind of response did you get from the young offenders?

We remain grateful to all the young adults who helped us with this project. Their creative and positive input has been invaluable in shaping a response that could enable them to participate in the criminal justice process more effectively and contribute to the outcomes we all hope to see. Here is some of what they told us:

Court is really hard to follow.

The technical language and layout of the court room are barriers to understanding. One young person described it as though, “they speak a different language.” Another said several weeks after appearing in court, “I still don’t understand why I got this sentence now.” A simple request came from another, “explain what is happening. It could prevent me coming back.” When young adults had their sentences explained clearly, it affected how they perceived the whole process, “I did understand my sentence, … I was happy with it, it was very well thought out.”

They want to be heard.

Being expected to behave like an adult and take responsibility for your actions, while at the same time feeling disempowered when, “They don’t talk to you, they talk about you.” was a bone of contention for many. Others noted, “I just want them to understand my background.” One young woman felt so disengaged from the process she told me, “They could have just called me up on the phone to tell me what I’d got.” In contrast, one person had a much more positive experience, “this time, they listened to my experiences– it was fair.”

Respect matters.

As one young person put it, “if they [the judge] don’t care, why should we?” Those involved in delivering justice at court are clear that the institution’s formality is there to demand respect from defendants. But how can we expect this behaviour from defendants if it is not demonstrated to them in return? One young man’s perception of respect was that it is non-existent, “you don’t go to court to be respected.” We found this particularly troubling.

Ultimately, our discussions with young people revealed to us that while few talked about dissatisfaction with their sentences, all highlighted the importance of understanding the process more clearly, their wish to feel they were treated with respect, and their desire to have a meaningful voice.  If the system is to retain its legitimacy, courts must sit up and listen. In the justice system, public trust is not just a nice-to-have. It is the basis of the system’s legitimacy and a foundation stone for people’s compliance with the law.