Opening speech for the CPS youth conference: The role of the youth prosecutor
A speech given by the Director of Public Prosecutions, Keir Starmer QC, to the delegates of the CPS Youth Conference on 10 March 2009.
a modern, transparent prosecuting service that prosecutes effectively, efficiently and fairly.
The subject of youth justice has always been close to my heart. And as many of you will know I am currently mid-tour on a tour of all 42 CPS areas and one of the things I have been trying to achieve is a real sense of our vision, our movement and the quality of service that we can deliver. For me, that's a modern, transparent prosecuting service that prosecutes effectively, efficiently and fairly.
It is our task to help young people and to give them the support they need to lead crime-free lives. That's a huge challenge for all of us, particularly the youth specialists gathered here today. I want to focus on you and I want to look at some of the history of the content of the discussion we'll be having today. Your specialism is unique and important in the criminal justice system. In every case involving young offenders, you balance the interests and welfare of young offenders with the need to deliver justice to the victims and communities affected by their offending behaviour.
The CPS obviously needs youth specialists with both the knowledge and power to deal effectively with offending by a group of youths with different behaviours, problems and backgrounds. But the CPS cannot do this alone. We need to do this with our partners in other agencies: the police, youth offending services, children's services, courts and the third sector. For that reason, I am pleased that our colleagues in these agencies join us today to consider how we can work together in the year ahead to prevent offending by children and young people.
The role of the youth specialist has changed since the CPS was established back in 1986, and I want to just consider that change and consider also the much more sophisticated role that we now have.
The CPS was set up by the Prosecution of Offences Act 1985, and it is important to appreciate the difference between what was envisaged then and what we have now. I appreciate that transformation is a much overused word but I think if you put the vision of 1986 alongside the reality of 2009 it is nothing short of a transformation. What was envisaged in 1986 was a service that would receive the charge and information and instructions from the police and would then process and prepare that charge and information for trial and, in the more complicated cases, pass it to the self-employed bar to prosecute in court. So very different to now. We were only influencing things after charge and then releasing the case in many instances for presentation in court - a limited and rather narrow function.
Put that alongside the CPS of today and you see something really quite different. You see a professional organisation, which in complicated cases that are serious, involves us pre-charge. We advise the police often when an operation has been done and very often before the charge is formulated. Then you have charging by the CPS in all serious cases and - it is a sophisticated exercise. Not only is it a decision over whether to charge or not, there are also considerations of additional cautioning, diversion etc, all of which will be more important in this field over the coming years. That is a gateway function which we simply didn't have in 1986 and it is a really important hallmark and characteristic of a modern prosecuting service.
The way in which we prepare cases, particularly in this specialist field, goes far far beyond that of 1986 and of course we now present very many of our cases in court. Now that, for me, is a transformed service, and a very different service and it is important we recognise that and articulate that change.
So far as specialist youth prosecutions are concerned, it is significant that even back in 1986 when all that was envisaged was the narrower model, this specialism was recognised.
When the Prosecution of Offences Act was debated in the House of Lords, their Lordships were determined to ensure that the Crown Prosecution Service should make special provision in youth cases. It was one of the first things that was identified as needing special consideration and care.
Their Lordships, in debating in the House of Lords, knew that children and young people think and behave in a different way to adults, and for that reason the new Crown Prosecution Service needed lawyers with specialist knowledge of children and young people to work on youth cases.
The then Attorney General endorsed this approach and gave an undertaking that in areas where there was sufficient juvenile court work to justify specialisation, whether whole-time or part-time, officers of the Crown Prosecution Service would be both assigned and trained specially to deal with those cases. Guidance was drawn up at its very inception. This is important as it shows the period of time for which the CPS has taken youth justice so seriously. It shows that even with the more limited role the CPS had at the outset, that it was one thing marked out by the House of Lords and accepted by the Attorney General as warranting special care and attention.
Since then not only the CPS, but also the legislation that forms the background, has radically altered. Let me give you some examples. Since 1986, the juvenile court has been replaced with the youth court, and has extended its jurisdiction to include 17 year olds. Youth court powers have been increased, particularly in relation to custody, so that youths as young as 12 can be remanded in custody and sentenced to Detention and Training Orders of up to two years. Doli incapax has been abolished, with the result that 10 year olds can be convicted without the need to prove that they understand the criminality of their behaviour.
England and Wales has one of the lowest ages of criminal responsibility in the world, much lower than in the majority of our European counterparts. For example in the Scandinavian nations the age of criminal responsibility is 15, in Portugal and Spain it is 16, and in Belgium and Luxembourg it is 18. So there is considerable variation throughout Europe in respect of the age of criminal responsibility. The youth prosecutor in England and Wales therefore makes important decisions regarding outcomes for very young offenders that are made by care and social services agencies in most European countries. One only has to say that to appreciate what the specialism is in this particular field involving, as it does, a specialist knowledge of children, their development and welfare as well as a specialist knowledge of the law itself.
The Code for Crown Prosecutors makes clear that the interests of a youth must be considered when approaching the public interest stage of the Code test. This is a consideration that we share with the courts that must have regard to the welfare of any children appearing in court, whether as defendants or not (section 44 Children and Young Persons Act 1933). Additionally and internationally these duties are grounded in the United Nations Convention on the Rights of the Child 1989, and in the UN Beijing Rules.
Turning from the background to the process, what we see in youth justice specialism is all the sophistication of a modern prosecution service. Youth specialists for example provide pre charge advice, which requires a thorough knowledge of the diversion measures available, knowledge of the threshold of prosecution and a great deal about the youth justice system in general. So here the sophisticated pre-charge part of the process is in play.
Then turning to charging, youth specialists build good relationships with other agencies, particularly the police and youth offending service, so that alternatives to prosecution can be properly considered. Acceptable Behaviour Contracts and restorative justice measures may be effective in preventing youth offending, and may avoid the criminalisation of a young person. The CPS has strengthened its guidance on the prosecution of looked after children, with the effect that low level offending that takes place in children's homes should usually be dealt with according to the behaviour management policy of that home, and not by the youth court.
Later this year, conditional cautioning will be extended to 16 and 17 year olds in pilot areas. This is a significant development and one that requires ever more specialist skills.
Not all youths, of course, should be diverted from prosecution. Previous offending behaviour and the seriousness of the offence are always going to be important. Where the public interest requires a prosecution, the youth prosecutor advises the police on evidential requirements and makes reasoned recommendations to the court regarding venue and bail.
When it comes to the court itself, courts, quite rightly, look to the CPS for guidance in applying the complex legislation governing bail, venue and sentencing. Our Crown Advocates regularly conduct youth trials in the Crown Court as well. The recent BBC2 programme "Barristers" featured the first murder trial conducted by a CPS lawyer. This was a seven-handed case, with all of the defendants separately represented by QCs and juniors, a challenge for any barrister. The trial resulted in a number of convictions, including the conviction of a youth for murder. If you saw it you will know that the programme showed the CPS lawyer meeting and supporting the bereaved family who were very impressed with her professionalism and personality. These are the qualities of lawyers who work for an independent and professional prosecution service.
I will give you another example which, for me, captures the modern prosecuting service that I think the CPS now is, and that is the Rhys Jones case in Liverpool. Everybody in this room will know the tragic circumstances of that case. The youth of the victim and the youth of the defendants. A very important case involving very complex issues. There, the day after the tragic murder of Rhys Jones, a CPS lawyer was assigned as a reviewing officer assisting with the collection of evidence by the police, advising, carefully analysing at each stage whether there was enough evidence to charge. As you know the case attracted a huge amount of publicity. It was, frankly, exactly the sort of case in which historically there had been miscarriages of justice - a historic murder, massive pressure for results. But the CPS lawyer waited until the appropriate time to charge, charged appropriately, then liaised with the family of the victim and ended up not only advising on disclosure but also acting as junior counsel in the case. There you have a vignette of a modern prosecuting service dealing with youths in court in all respects.
Clearly in that case, as in any case a criminal conviction has serious consequences for a young person. It can restrict opportunities for higher education and employment. It is essential that the rights of young defendants are upheld, especially the right to a fair trial. Here of course the courts look to us to assist them. Article 6 of the European Convention on Human Rights, now enshrined in our law, explains the minimum requirements for a fair trial. There is a great deal of case law on what that means in the youth justice field, for disclosure, fair process, time to effectively prepare and most importantly of all, and most challengingly of all, there is the right to participate effectively in criminal court trials. This is something to which in the past insufficient attention was paid, but now it is very much a part and parcel of the specialisim day in, day out.
As you are aware, many youths who come before the courts have Special Educational Needs, learning disabilities, learning difficulties and disorders. The trial process must be adapted to accommodate a youth with these special needs, and we are able to play our part in ensuring that they are recognised and that the right to a fair trial is upheld. Specialist prosecutors need specialist advocacy skills and use clear and age appropriate language to enable the youth to understand the prosecution evidence and to answer questions in cross examination.
The process continues post conviction - another change from the situation as it was in 1986. In the past, the prosecutor's role in a case, even when passed to the self-employed bar, finished at conviction. The court announced the guilty verdict, the prosecutor handed up a list of antecedents, applied for costs and compensation, and then sat back to record the sentence on the prosecution file.
The prosecutor now plays a much more active role in sentence. Prosecutors should ask police to obtain a Victim Personal Statement and ensure that the court takes that into account when passing sentence. It is only by listening to the victim that the court and the offender can appreciate the impact of the crime on victims. Prosecutors must be attentive to the plea in mitigation, challenge any assertion made by the defence that is inaccurate, misleading or derogatory, and most of all maintain the confidence of victims and witnesses who have no opportunity to respond to distressing and inaccurate statements.
The prosecutor has a duty to assist the court to pass a sentence that is lawful and proportionate to the seriousness of the offence. In the Crown Court, where judges may not be so familiar with youth sentencing provisions, the youth specialist draws attention to Sentencing Guidelines and statutory provisions and recent and relevant cases.
Still more, the youth specialist must remind the court of its powers to make a range of ancillary orders, such as parenting orders or parental bindovers to encourage parents to take responsibility for their children's offending behaviour and to order compensation. So, throughout the process from pre-charge to post-conviction, we see the more sophisticated CPS model - that now is the modern CPS - in youth justice more than any other area of the work in which we are involved. It is ever more complicated, ever more specialist and requires ever clearer articulation of the prosecution view. Plainly presenting complex issues is a huge challenge and an important one, for each of us.
In closing, I hope it is clear that I attach considerable importance to the specialisms of our youth prosecutors and I hope I have made it plain that the role of the youth specialist is a dynamic and vital one. Your specialisms are valued. This is a challenging and important role that many of you have performed for many years. You are recognised locally as experts in your field and I thank you for your contribution to delivering youth justice.
Finally, I want to say that the CPS is committed to securing the knowledge and power that it needs to deal with youths with different behaviours, problems and backgrounds. We will continue to work with our partner agencies and our communities to provide a prosecution service that meets the developing needs of the 21st Century.