Representing the Feral Youth

A practical approach to youths with mental health

difficulties

Shona Grundy

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Why the ‘Feral’ Youth?

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Riots 2011

• Instant political and media perception was in fact a misconception

• Riots were organised by ‘gangs’. o Initial estimates suggested that 25% of people arrested were gang

affiliated. o When figures were re-evaluated true figure was in fact 13%

• Rioters were the ‘feral youth’o By 8th June 2012 3,051 people had been put before the courts on riot

related charges.o In London the number of people prosecuted by the same date was 2,194o 74% adults and 26% juveniles

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Misconceptions in the Youth Court

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Lecture Content• Practice & procedure of representing youth

defendants in the youth court where there is concern as to his/her mental capacity

1. Fitness to plead in the Youth Court

2. Effective participation

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Fitness to Plead• Well known test – R v Pritchard (1836) 7 C&P 303

o Ability to understand the charge(s)o Ability to decide whether to plead guilty or not guiltyo Ability to follow the course of proceedingso Ability to instruct a lawyero Ability to challenge a juroro Ability to give evidence in his/her own defence

• Court can find unfitness to plead if the defence can establish that on a balance of probabilities any one of the six criteria is beyond the defendant’s capabilities (R v M (John) [2003] EWCA Crim 3452)

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Importance of Background

• Why knowing your client’s background can be so important.

• Where can you get useful information:

o Parents/Familyo Looked after Childo Youth Offending Teamo Educationo GP

• Prior authority

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Which Expert?Psychiatrist

• Medically trained

• Mental state examination

• Diagnosis of mental disorder

• Interview and observation

• Section 12 approved under MHA 1983

• Can prescribe medication

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Psychologist

• Degree and Postgraduate qualification

• General human behaviour

• Functioning, personality and development

• Only a psychologist can IQ test

Psychological ConditionsRelevance

• Understanding evidence/charge

• Giving evidence or the actual offence

• Regular breaks, explain fidgeting, etc

• Mitigation

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Condition

• Learning Disability

• Autism Spectrum Disorder (inc. Aspergers Syndrome)

• Attention Deficit Hyperactive Disorder

• Post Traumatic Stress Disorder

Psychologist• Wechsler Intelligence Scale for Children IV

• Covers age range 6 to 16 years and 11 months

• Full IQ test which is different to the adult test and represents a child’s general cognitive ability

• The Crime and Disorder Act 1998, s.34 – Doli incapax (‘Neuroscience and the Law’ – The Royal Society)

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Psychiatric Conditions

• Mental illness - DSM-IV / ICD-10

o Schizophreniao Bi-polar (manic depressive)o Drug induced psychosiso Personality disorders

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Experts• Clearly set out what you want the expert to

consider• Areas not to be discussed• Offence in hypothetical• Expert works for the court not you• Make the need to see a draft and discuss report

clear• Unethical to exclude parts afterwards but can

make amendments

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Typical Requests• Fitness to plead (set out Pritchard criteria)• Effective participation – Grisso• Suggestibility and Compliance – Gudjonsson• Suggestibility – likelihood of yielding to

investigative pressure. Interview?• Compliance – likelihood of acting under duress• Vulnerability to a custodial setting• Specific issues to your client

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Fitness to Plead in the Youth Court

• As in the Magistrates’ Court, there is no specific procedure by which a person’s fitness to plead may be determined in the Youth Court.

• Grave Crime: o representations that the justices should decline jurisdiction as Crown

Court is the more appropriate venue

• Summary Trialo R v Barking Youth Court [2002] EWHC Admin 734o Varma v Redbridge Magistrates Court [2009] EWHC 836 (Admin)

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• The procedure is provided for by a combination of the MHA 1983, s.37(3) and the PCC(S)A 2000, s.11(1)

• s.37(3) provides:“Where a person is charged before a Magistrates’ court with any act or omission as an offence and the court would have the power, on convicting him of the offence to make a hospital or guardianship order under subsection (1) above in his case, then if the court is satisfied that the accused did the act or made the admission charged the court may, if it thinks fit, make such an order without convicting him.”

• Mental illness or severe mental impairment

• CPS v P [2007] EWHC 946 (Admin) – guidance on the approach to be taken in the Youth Court

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Youth Court Disposals• s.37(1) MHA 1983 – Hospital Order or Guardianship

Order

• Restriction Order – Youth Court has no power if no conviction. If there is a conviction, then if over 14 has to be committed to the Crown Court (s.43 MHA 1983)

• Where no conviction, no absolute discharge available in Youth Court

• Guardianship Order not available to those under 16. Therefore no community disposal available

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Effective Participation• T and V v UK [2000] All ER 1024

It is essential that a child charged with a criminal offence is dealt with in a manner which takes full account of his age, level of maturity and intellectual and emotional capacities, and that steps are taken to promote his ability to understand and participate in the proceedings

• Crown Court Practice Direction [2007] 1 WLR 1790

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Abuse?• SC v UK (2005) 40 EHRR 10

o 11 yrs old with significant learning disabilities (intellectual capacity of an 8 yr old)

o CC trial – application to stay on grounds of abuse/breach of Article 6 failedo ECHR found that there had been a violation of Article 6(1)

• R(P) v West London Youth Court [2005] EWHC 2583 (Ad)o Standard of proof when determining question of whether trial of youth with

limited intellectual capacity would be an abuse of process on ground that he would be unable to extent required by Article 6 is balance of probabilities

o Crucial question – can procedures be adopted that allow the defendant to participate effectively

o P was 15 yrs old with the IQ of an 8 yr old. o HC held that DJ right not to grant stay. o SC v UK distinguished on basis that he was tried in CC rather than YC

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• CPS v P [2007] EWHC 946 (Admin)o Detailed guidance on procedureo Youth Court should first consider whether there is a way in which,

with modified procedures, the youth can ‘effectively participate’o If decides that cannot effectively participate, then the Court should

switch to consideration of whether the child has done the act(s) alleged.

o P was 11 yrs old with a mental age of just over 7 yrso HC held that the DJ in the Youth Court had been wrong to stay

proceedings when he did

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Remedies• R(P) v West London Youth Court [2005] EWHC

2583 (Ad) the HC listed ‘practical steps’ that could be taken:

i. Keeping the defendant’s level of cognitive functioning in mind;ii. Using concise and simple languageiii. Having regular breaksiv. Taking additional time to explain court proceedingsv. Being proactive in ensuring the defendant understands the

ingredients of the chargevi. Explaining the possible outcomes and sentencesvii. Ensuring that cross-examination is carefully controlled so that

questions are short and clear and frustration is minimised

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Special Measures• Live Link:

o YJCEA 1999 s.33a-c; Police and Justice Act 2006 – Came into force on 15th Jan 2007

o The Court may, on the application of the accused if a youth, give a live link direction – only if his ability to participate effectively in the proceedings as a witness giving oral evidence in court is compromised by his level of intellectual ability or social functioning and it is in the interests of justice and the live link would allow him to participate more effectively

o The Court can order that the defendant be present for his trial via live link – not just for the giving of evidence. R v Ukpabio [2007] EWCA Crim 2108

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Special Measures• Intermediaries

o YJCEA 1999 special measures regime does not include the accusedo Common law power – R (on the application of C) v Sevenoaks Youth

Court [2009] EWHC 3088 (Admin)o Government responded with s.104 Coroners and Justice Act 2009 –

unlikely to come into force

o Test: Where accused is a youth when the application is made, the condition is that the accused’s ability to participate in the proceedings as a witness giving oral evidence in court is compromised by the accused’s level of intellectual ability or social functioning

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Registered v Unregistered• Register is controlled by MOJ. Defence not afforded

access to it• Registered intermediaries are:

o Selectedo Trained (5 days)o Examinedo CRB checkedo Regulated by a code of conducto Have a formal complaints system

• May be situation where unregistered intermediary more appropriate

• R v G P & 4 others, Leeds Crown Court, 20 July 2012

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The EndEnjoy lunch

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