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THE HAMILTON SHERIFF YOUTH COURT PILOT: THE FIRST SIX MONTHS

SECTION THREE: REFERRAL TO THE YOUTH COURT

INTRODUCTION

The Youth Court is based on the recognition that a fast-track system, which ensures a rapid Youth Court appearance, is important in order to ensure that a young person is held accountable for their actions and to ensure public confidence in the efficiency of the system. This section examines how referral processes have operated in the first six months of the Youth Court and considers professionals' views on the criteria used to determine suitability for the Youth Court and how this criteria has worked in practice.

RESPONSES TO YOUTH CRIME PRIOR TO THE INTRODUCTION OF THE YOUTH COURT

As the report for the Children's Services Plan Group in South Lanarkshire (McNeill and Batchelor 2001) found, data on youth crime are difficult to obtain and data from the Reporter and social work services cannot readily be used due to the use of different categories and formats. However, some data have been obtained from the Crown Office and Procurator Fiscal Service (COPFS), and from the relevant local authorities.

Proceedings

In the 12 months to end May 2003, COPFS in Hamilton received 2,122 cases with one or more accused aged 15-17. These cases concerned 2,470 accused aged 15-17, and a total of 3,925 charges (source: COPFS).

Sentences

For 2001, the latest year for which figures are available, 182 young people aged under 18 had charges proved against them in Hamilton Sheriff Court, 97 per cent of whom were young men. Sixty-one (34%) received a community sentence involving supervision (probation or community service order) and 13 (7%) a custodial sentence.

Table 3.1: Persons under 18 with Charges Proved in Hamilton Sheriff Court, 2001

(Source: Scottish Executive Justice Statistics)

Sentences following social work reports

In 2002-03, 79 persons aged under 18 were the subject of a Social Enquiry Report (SER), of whom 87 per cent were young men. Deferred sentences, probation orders and community service were the most frequent court outcomes (source: South Lanarkshire Council).

Table 3.2: Court Outcome for Those Aged Under 18 Subject to an SER at Hamilton Sheriff Court 1June 2002 to 31 May 2003 (S. Lanarkshire)

(Source: South Lanarkshire Council)

At the time of writing the research team was awaiting similar data for North Lanarkshire.

OBJECTIVES OF THE YOUTH COURT

There was a shared understanding across professional groups with respect to the objectives of the Youth Court which all respondents considered to be appropriate. As one social worker observed:

"Primarily it's about the needs and deeds of young people, a bit about it is upping the ante from children's hearings. It is still a formal court, there's no way around that, but it is more about looking at the kind of holistic needs and much more targeting of support needs, working quite intensively with the young person, linking them into the different supports that we've got."

Social work respondents noted that they had some concerns about the formality of the system and its similarity to the adult court system. However, the opportunity to provide young people with a range of services and supports was viewed as highly beneficial.

"I do think that there is a commitment within the pilot certainly, to working to meet the needs and address the deeds of young people but I suppose my reservation would be that we are dealing with young people in a formal adult system that has got consequences for the rest of their life." (social work manager)

Sheriffs regarded the objectives of the pilot Youth Court as being to ensure cases involving young people were dealt with quickly and " to nip youth offending in the bud", with the wider objective of promoting community safety, especially in those communities in which youth offending was perceived as a particular problem.

Sheriffs saw their role in the Youth Court essentially as being no different from their role when dealing with criminal business elsewhere in the sheriff court. The main differences were: the age of the accused; the availability of more detailed, hence longer, reports; and the emphasis on fast tracking.

IDENTIFICATION OF CASES BY THE POLICE

As indicated in Section One, young people referred to the Youth Court should be: 16 or 17 years of age (or in some cases 15 years of age); resident in North or South Lanarkshire; be appearing before Hamilton Sheriff Court (following a decision by the Procurator Fiscal that there is a sufficiency of evidence and that prosecution in the sheriff court is merited); and should have a history of at least three separate incidents of alleged offending within a six month period resulting in a criminal charge ("three strikes and you're in") or be currently subject to Youth Court procedures. With respect to the last criterion, the incidents need not have resulted in a referral by the Reporter to the Children's Panel or a prosecution. There is also flexibility for cases to be considered if they do not meet these offending criteria but if the young person's contextual background and circumstances suggest that referral would be appropriate as a means of enhancing community safety and reducing the risk of re-offending.

There was a general view among police officers that the Youth Court criteria were clear, unambiguous and straightforward to apply. Duty Officers were able simply to apply them along with their other guidelines for arrestees. It was remarked that very few offenders meet the full criteria, including the 'persistency' criterion: of these, most are released on an undertaking to appear in court. No significant problems were reported in relation to referrals. There had been a slight misunderstanding on the part of some duty officers about the use of undertakings (such as the release on undertaking of some 15 year old offenders instead of referral to the Reporter) which had been quickly resolved.

Some respondents suggested that, in the initial months of operation, some inappropriate referrals had been made by police officers. For example, some 13 and 14 year olds had been referred directly to the Procurator Fiscal with a view to their case being heard in the Youth Court. This was attributed to enthusiasm among the police for the Youth Court approach:

"The police are doing their best to deal with the problem (of youth crime) in what we would consider appropriate ways, but there is a core of young people who are really difficult and you can sympathise with their frustration and thinking this is something else we can try that might be more effective." (social work manager)

This issue had, however, been addressed and was no longer a problem.

It was originally envisaged that the police would identify potential cases using the referral criteria and fast track these to the Fiscal, with other cases involving 16 to 17 year olds being passed to the Fiscal at a later date. There was general recognition among police officers that all reports on 16 and 17 year olds now go on 'fast track' to the Procurator Fiscal and that this properly passes responsibility for decisions from the police to the Fiscal. One officer thought that a positive aspect of this approach was that it had the capacity to 'pick up' first offenders who could be offered support before their offending became established. While some Procurators Fiscal considered that this creates work in terms of sifting through trivial cases, others thought that this approach was acceptable because it was more appropriate for decisions to be made by Procurators Fiscal.

Both officers and managers stated that reporting officers try to ensure reports are done before the end of their shift, and that this happens in the vast majority of cases. Duty officers acknowledged that it was their role to ensure that this rule was followed. One case manager estimated that 70 per cent of reports are done that day and the remainder within two days. For case managers, a key aspect of the system is that dedicated case managers see cases right through, without the division of labour found in regular case management. Case managers check Youth Court cases on a weekly basis and pursue any late reports. This makes for case management that is highly efficient, with faster processing of cases, no backlog, and no missing cases. As one case manager stated: " I hammer them through" (to the Fiscal).

Only one manager was concerned that the increase in custody cases diverts staff resources into paperwork. Other officers felt that the impact on workloads was not great because youth cases constitute only around ten per cent of cases, most of which are relatively straightforward. It was perceived that the system has built-in controls, so that if a case were missed at one stage it would be picked up at the next.

Compared to regular cases, most officers stated that Youth Court reports often contain additional information on the family background and circumstances of the accused. This is not a new concept, because such information is routine for those aged under 16. Some officers, however, were not sure whether the Procurator Fiscal really needed such information. Information in police reports was said by Fiscals to be 'reasonable' and 'better' than normal with some contextual and background information being included, but the general view was that more information is required.

As most cases are relatively straightforward, there have been few requests for statements as part of the police report to the Fiscal and few problems in relation to statements. There was a general view that reporting officers know that statements must be done immediately. Most officers saw that Youth Court warrants and citations are given priority and are marked for the Youth Court so that they do not go astray. Youth Court warrants, however, are few in number and do not contribute significantly to the overall 'warrant problem' in the force.

All officers in the subdivisions concerned had been trained on the aims and procedures of the Youth Court. A guide had been prepared for duty officers and supervisors. Every respondent was satisfied with their level of knowledge and training. Duty officers and case management officers in particular had intensive training at a multi-agency seminar which was highly commended, particularly for improving inter-agency working. Such thorough training can be attributed to the deployment of dedicated sergeants responsible for the project in each subdivision.

Although there was agreement that the Youth Court creates extra work, particularly for reporting and case management officers, most officers were aware that extra resources had been made available. Duty Officers felt that it had least impact on them as it was simply a matter of checking for pending cases and following straightforward criteria. Case management officers recognised the significance of the extra resources available for their work. There was a general view that the overtime budget for reporting officers was particularly significant in facilitating 'same day' reporting. This overtime to some extent replaces the overtime reporting officers might otherwise have earned on court duty.

PERSPECTIVES ON THE YOUTH COURT CRITERIA

Procurators Fiscal

For the purpose of eligibility for entry to the Youth Court, "persistency" is defined as "at least three separate incidents of alleged offending which have resulted in criminal charges within a six month period." The persistence criteria are regarded as guidelines and were reported by Fiscals "not to fetter" their discretion in relation to the Youth Court. If there appears to be a pattern in the offending, suggesting escalation or potentially serious problems, then it is likely to be marked. Even if there are three offences in six months, if each of these is trivial and does not suggest an impending problem, the case will be diverted to social work, Fiscal fine or warning. If there is only one offence but there are public safety concerns, such as carrying weapons, this is likely to be marked for the Youth Court.

Defence Agents

Most defence agents were in agreement with the overall criteria for inclusion and felt that they were being met. They reported no difficulties with police identification of appropriate offenders. The discretion afforded Fiscals in admitting accused to the court was regarded as crucial to the application of the criteria. The referral process was deemed by Reporters to be identifying appropriate young people for the Youth Court and was described as a 'robust process'.

Social Workers

Overall the target group was viewed by social workers as appropriate and workers indicated that the continued option of diverting cases, or referral back to the Hearings System by the Procurator Fiscal was appreciated. Initial concerns, that young people who could be dealt with most appropriately by the Hearings System but would be propelled into the 'adult system' of the Youth Court, had not been realised, although there had been problems with inappropriate referrals in the early stage of the Youth Court. Social workers clearly indicated that young people who could be dealt with by diversion or the Hearings System, should be kept out of the Youth Court.

Social workers specified that, while young people on solemn procedure could not be considered for the Youth Court under current criteria, they believed that there was scope to include such young people within the Youth Court given the range and intensity of services that were available, " it's maybe about the cusp up-the- way rather than down- the- way." (social work manager)

"Young people going through solemn proceedings are not considered for the Youth Court at present because of the nature of the offending. But the reasons why they offend are similar…That's the concern I have that young people going through solemn proceedings are not considered." (social worker)

One social worker did indicate that if a young person had been referred for a first and serious offence (under summary procedure) where there was no indication of persistent offending, this would be discussed with the Procurator Fiscal. In some cases this had resulted in the young person being diverted from the criminal justice system.

There was a general view among social work respondents that the definition of persistency used to identify the target group for the Youth Court needed to be flexible and it was noted by all social work respondents that this was happening in practice, although views differed as to the appropriateness of this flexibility in individual cases. Overall however, the importance of discretion was considered necessary:

"One of the sheriffs (...) has chosen to defer sentence on some of the charges but allow the young person to work with the supervision order under the Children's Hearings System. You have a sense the young person won't fall out the net. The question is how consistently that would be applied if it's rolled out, but the principle I think, of young people not being pulled into the adult system has to remain an important principle." (social work manager)

Sheriffs

The sheriffs had, to varying degrees, concerns about the definition of persistent offenders used by the Youth Court, particularly since the interpretation of the criteria appeared to vary across agencies. As one sheriff remarked:

"The definition of persistent young offenders that they [The Feasibility Group] came up with was a bit of a stab in the dark it seemed to me."

Two particular issues arose in this regard. First, one sheriff in particular voiced concern that the criteria referred to three episodes of offending, which might or might not result in a conviction. This, it was suggested, might have human rights implications if young people were being labelled as 'persistent offenders' when they were, in fact, only convicted of a single offence (because, for example, there were deemed to be insufficient grounds for prosecution of all offences or if the accused was found not guilty by the court or a not guilty plea was accepted). It would be preferable, it was suggested by one sheriff, if the 'three episodes' applied to convictions, accepted grounds at hearings or diversion from prosecution, where guilt was known to have been accepted or established.

Second, the criteria relating to the 'contextual background' were interpreted by sheriffs as referring to the contextual backgrounds of the offenders (in terms of family, personal and social problems) which might suggest they were at risk of further offending:

"I think what was envisaged in that was somebody who had family circumstances which were chaotic or someone who was known to be involved in drug abuse."

The Procurators Fiscal, on the other hand, tended to interpret this criterion in terms of the risk the young person presented to public safety. This meant that young people who did not have three episodes of offending in the previous six months were being referred to the Youth Court, a practice that was questioned by some sheriffs:

" We are finding the odd case coming in, not huge numbers of them but the odd case coming in where the party concerned doesn't have a number of previous convictions, is a first offender who is genuinely a first offender. And whereas I see no harm in that person being dealt with swiftly and it is probably helpful that he is dealt with swiftly, there are people coming into the Youth Court who don't seem to meet the criteria that was set down. The Fiscals will tell us that because of their surrounding circumstances each time the cases are justified in being put down. Certainly some of the ones I have seen I have reservations about that and I have questioned it once or twice."

Each of the sheriffs was concerned to varying degrees by what they interpreted as being a 'broadening' of the criteria: it was bringing into the court system young people who would not otherwise have received such an intrusive intervention; it was creating an impression that there were many more 'persistent offenders' in the communities served by the Youth Court than could be justified by the figures ¹³; and it was distorting the evaluation.

Sheriffs were less concerned that cases that might meet the Youth Court criteria were potentially being missed, and did not believe, on the basis of their experience of sitting in the sheriff court during the pilot period, that this was occurring. One sheriff, however, suggested that the occasional petition case might have been more appropriately dealt with in the Youth Court, a view shared by a number of social work respondents.

Defence Agents

Some defence agents had concerns that in order to make the court succeed, young people were being brought in who had few or no previous convictions. Moreover, accused were being given disposals (probation, restriction of liberty order) which on paper were harsher than those they would likely have received in the regular court (small fines, deferred sentences, admonitions). That said, the solicitors' view was that the offenders had responded well to the interventions that had been provided.

While the Youth Court criteria were reported by most respondents to be workable, in view of the complexity of the term "persistence" and the potential for varying interpretations of the 'contextual' criteria, it may be worth revisiting the criteria at the end of the pilot period.

15 YEAR OLDS AND THE YOUTH COURT

Although the Youth Court is primarily targeted upon 16 and 17 year olds, young people of 15 years of age may be brought within its jurisdiction if they would otherwise have been prosecuted in the sheriff court. The decision to refer to the Youth Court will be taken by the Procurator Fiscal following consultation with the Reporter to the Children's Panel and with regard to existing criteria for prosecution of this age group as set out in the Lord Advocate's guidelines.

In practice, only one young person appeared in the Youth Court during the first six months and advice had been sought from the Children's Panel on only three occasions. There was a general consensus that there was no evidence that young people were being 'sucked into' the Youth Court who would otherwise have been dealt with by the Panel.

The Police

The duty officers interviewed reported that they had not yet had dealings with 15 year olds in relation to the Youth Court. For case management officers, decisions about 15 year olds properly rest with the Procurator Fiscal. Case management officers have sent cases of 15 year olds to the Procurator Fiscal and will continue to do this although at the time of interview, no such cases had so far gone to the Youth Court. In general, police officers expressed few opinions on matters that are not within their remit, such as what should happen to accused persons under 16 years of age. Those officers who did express a view felt that 15 year olds should be dealt with by the Reporter, except for serious charges which should go to the Youth Court. Major shortcomings in the present Hearings System were recognised, but most thought the solution was for the Reporter to be resourced as well as the Youth Court.

Procurators Fiscal

In relation to the Youth Court, the prosecution's approach to children (and statutory children, that is, 16 and 17 year olds on supervision) was reported to be unchanged. Procurators Fiscal indicated that they were reluctant to send children to court. All cases involving 15 year olds were discussed with the Reporter and most remained with the Reporter. The Youth Court did, however, give the Procurator Fiscal an additional option for certain offenders. If the Reporter decided that the Youth Court was the best option, and that the Hearings System had run out of options, the case would go to the Youth Court. As one respondent indicated, this process of consultation appeared to be effective:

"What makes it particularly effective is the liaison between the Reporter and the Procurator Fiscal at the stage where they discuss the cases, and as far as I'm aware, there hasn't been any conflict at all as to where people should be going".

Reporters

The Reporters considered that the age criteria for referral (16 to 17 year olds, with the flexibility to deal with 15 year olds) was appropriate. However, they stressed that it was important that young people under 16 should continue to be referred to the Youth Court only in exceptional circumstances and that this should not change over time or in the event of Youth Courts being rolled out. In particular, there was concern that young people under 16 should not be electronically monitored (to which they are currently not subject within the Children's Hearings System).

Defence Agents

There were differences of opinion among defence agents over whether it was desirable for 15 year olds to be brought before the Court. Some agents believed that this should only happen in exceptional circumstances, and that the adult court is not the appropriate place for children. Others felt that some 15 year olds would benefit from the impact of the court's formality and from the threat of custody. These differences appeared to stem from general beliefs about how children respond rather than any specific evidence. One agent thought that the court should deal with serious charges and was surprised that the court had not done so, perhaps indicating a misunderstanding of the Youth Court's criteria.

Social Workers

While 15 year olds could be brought into the Youth Court if considered appropriate, there was a shared view among social workers that young people under 16 years of age should, as a point of principle, be dealt with by the Hearings System:

"Some flexibility should come into place but I don't really agree with 15 year olds going to the Youth Court if we can avoid that. I think the children's hearing system has dealt appropriately with these young people in the past and I think they should continue to do so." (social worker)

"There might be a few cases where the court has more of an impact on young people (than the Hearing) but I think it's about how you engage with young people and the service that they get that is important rather than the authority bit." (social work manager)

Similarly, while there had been discussions about the appropriateness of including 15 years old in the Youth Court where appropriate, several Youth Court professionals noted that it might have been useful to include 18 and 19 year olds. One social work manager commented that this would have given a clear message that the Youth Court would deal with youth crime which may otherwise have ended up in the adult system rather than the current emphasis on the " children's hearings side of it".

Sheriffs

Relatively few 15 year olds had been referred to the Youth Court and only one had been prosecuted. Sheriffs suggested that discretion had appropriately been left with the Crown and that the usual procedures would be followed in these cases, with the Fiscal discussing the case with the Reporter and taking account of the Lord Advocate's guidelines prior to deciding whether to prosecute rather than have the case referred to a Hearing. It was thought that in most cases in which it would be deemed to be appropriate to prosecute a 15 year old in the court, the case would be referred to the Youth Court. The sheriffs had no reason to suspect that there was any evidence of net-widening in this regard. As one commented:

"I don't think there is any sign of people being sucked into the court who would have been dealt with through the panel. I just don't see it."

YOUTH PROSECUTION CASES REFERRED BY THE POLICE

Information was provided about 227 youth prosecution cases referred by the police over the first six months of the pilot. Specific information was not available in all cases, but where it was, the details of the cases referred can be summarised as follows ¹⁴:

• 56% of referrals came from South Lanarkshire and 44% from North Lanarkshire
• 79% of young people were charged alone, 18% had one co-accused and 4% had two co-accused
• 92% of young people referred were male and 8% were female
• 33% of young people were 16 years of age and 60% were 17 years of age. Six young people (3%) were 15 years of age while nine (4%) fell outwith the Youth Court age criteria (being 14, 18 or 19 years of age)

Thirty-three cases (15%) were recorded by Fiscals as having been discussed with the social work department and 12 (5%) were discussed with the Reporter. Additional comments recorded by the Fiscals indicated that in those cases already known to the Youth Court, prior discussion with the young person's social worker had already taken place and would not be necessary on this occasion.

The majority of young people (79%) referred to the Fiscal were deemed not to meet the Youth Court criteria. Twelve young people (5%) met the persistent offender criteria, 20 (9%) met the 'contextual criteria' and 15 (7%) met both. The actual outcomes following marking of these cases by the Fiscal are summarised in Table 3.3.

Table 3.3: Outcome of Marking of Youth Prosecution Cases¹⁵

Clearly, the majority of cases referred to the Procurator Fiscal by the police involved relatively minor offences that did not warrant prosecution. Some young people were noted to meet the Youth Court criteria of three offending episodes but had been reported for offences that were deemed insufficiently serious to merit prosecution in the sheriff court. By contrast, some cases were considered so serious that they could only be dealt with on petition. In other instances, young people already had serious matters outstanding in other courts, which would undermine the Youth Court process.

Only around one in seven of the cases referred by the police since the start of the pilot was prosecuted in the Youth Court. Often young people were referred to the Youth Court because they were already in that system. Interestingly, more cases were referred to the Youth Court on the grounds that they met the 'contextual criteria' than on the grounds that they were 'persistent offenders'. The threat to public safety through the carrying of offensive weapons was usually cited as the reasons for deciding to prosecute the case in the Youth Court.

The outcomes of cases differed according to whether or not they were assessed as having met the Youth Court criteria. As Table 3.4 indicates, meeting the 'three episodes' (or persistent offender) criterion could result in an option other than prosecution, prosecution in the Youth Court or prosecution in another court, depending on the nature of the offences and the known circumstances of the offence.

Table 3.4: Marking Outcome by Whether or Not Met Youth Court Criteria

* No information available about criteria in one case

Almost all of those who met the 'contextual' criteria were prosecuted in the Youth Court, while those who met both the 'three episodes' and 'contextual' criteria were invariably prosecuted, with around a third being dealt with in courts other than the Youth Court. Overall, just under two-thirds (63%) of young people who met either or both of the criteria were prosecuted in the Youth Court. Only one young person who was referred to the Youth Court was deemed by the marking Fiscal not to meet either of the criteria, but here the particular circumstances of the cases were thought to merit a Youth Court referral.

The characteristics of the 30 young people identified by Fiscals for referral to the Youth Court had the following characteristics:

• 14 were from South Lanarkshire and 12 from North Lanarkshire ¹⁸
• four fifths were charged alone, while one fifth had one co-accused
• all were male
• 14 were 16 years of age and 16 were 17 years of age
• the case had been discussed with the social worker in 16 cases ¹⁹ and with the Reporter in three cases.

Referral systems were considered appropriate by social workers, and workers who had had the opportunity to discuss referred cases with the Procurator Fiscal, indicated that they had appreciated this process of consultation.

REFERRALS TO THE YOUTH COURT IN THE FIRST SIX MONTHS

Information from the Youth Court database showed that between June and December 2003, a total of 147 referrals involving 120 young people were made to the Youth Court. Whilst the majority of young people (99) were referred on only one occasion, 17 were re-referred once, three were re-referred twice and one young person was referred on five occasions. Insofar as re-referral is in relation to further alleged offences (as opposed to 'old' ones), it would appear that 21 young people (17% of referrals) had been charged with further offences since appearing in the Youth Court. The impact of the Youth Court on re-offending (as measured by reconviction) will be examined in greater detail in the final report.

The majority of referrals were male (95%), with young women constituting only seven referrals (5%.) ²⁰. The majority of referrals were aged 16 (44 or 31%) or 17 (74 or 51%), with one referral involving a 15 year old ²¹. The age of older co-accused referrals varied from 18 to 39 years, with half of this group of 26 referrals being aged 18 years ²². Only two young people were recorded as being under the supervision of the Children's Hearings System when made subject to a Youth Court referral. Information about the status of the young people referred was available in 104 cases. In just under two thirds of these cases (64%) the young person appeared from custody, 31 young people (30%) appeared on an undertaking and six appeared on citation (6%).

SUMMARY

The objectives of the Youth Court appeared to be shared across the different professional groups. Accordingly, Youth Court procedures and processes in relation to referral appeared to be working effectively. In particular, the fast-track process was considered to be operating efficiently, ensuring that young people were dealt with in the Youth Court in a timely manner. Overall, there appeared to be agreement that the criteria for referral was appropriate although several respondents indicated that in some circumstances it may be appropriate to consider young people on solemn procedure for the Youth Court.

However concerns were raised that the criteria were being used differently by different agencies. In particular, the issue of contextual background and circumstances could be interpreted in different ways. This is a significant issue given that more cases have been referred to the Youth Court on the grounds of contextual criteria than have been referred in terms of 'persistent' offending. While there was a recognition among the different agencies that flexibility and the use of discretion were important, it was noted that there was some ambiguity in relation to both 'persistence' (which did not relate to convictions) and 'seriousness', which were in need of clarification.

Procedures for dealing with 15 year olds were viewed as appropriate and the communication between the Procurator Fiscal and Reporter was considered to be constructive and effective. There was no evidence of any 15 year olds being prosecuted in the Youth Court who would otherwise have been dealt with by the Children's Panel.

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