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THE HAMILTON SHERIFF YOUTH COURT PILOT: THE FIRST SIX MONTHS

SECTION FOUR: SENTENCING IN THE YOUTH COURT

INTRODUCTION

Sheriffs presiding in the Youth Court have the same range of powers as any other sheriff sitting in a sheriff summary court. In addition, fast-track procedures, the 'rolling up' of cases (bringing together a number of charges under one complaint) and the system of review, provide additional mechanisms to the Youth Court. This section examines Youth Court processes in relation to sentencing, disposal and review.

LEGAL ADVICE TO YOUNG PEOPLE IN THE YOUTH COURT

Defence agents, in general, reported that they informed their clients that the aim of the Youth Court is to give them an opportunity to avoid becoming more deeply involved in offending and to prevent them going into custody. They gave general information about the possible disposals, and discussed only specific options if they were mentioned in the social work report. They indicated to clients that there was a greater likelihood of a non-custodial sentence in the Youth Court. This information, in combination with the summary of evidence given at pleading diet stage, was said to encourage plea bargaining. This was reinforced by access to police statements and summaries of civilian witness statements, at intermediate diet.

The Legal Aid system allows the client to engage the solicitor of their choice from the start, which defence agents believed increases their confidence in the system (whereas there is a general lack of confidence in the Duty Solicitor system). Defence agents were satisfied with the straightforward Legal Aid arrangements. Some felt that the Legal Aid arrangement had no particular effect, while others thought that it had led to more accused using their solicitor of choice.

ELECTRONIC MONITORING ON BAIL

When a young person appears in the Youth Court, there are a number of options available to the sheriff with respect to how the case is continued to the next appearance. In Scotland, electronic monitoring is available to courts to enforce restriction of liberty orders (see Lobley and Smith, 2000), with this task being undertaken by a private sector company. The Youth Court also has the option of imposing an electronically monitored curfew as a condition of bail.

The use of electronic tagging for young people on bail was viewed cautiously by social workers and a number of reservations were expressed concerning its use. While social work managers noted that sheriffs in Hamilton had welcomed it as both a measure for bail and as part of a court disposal, it was noted that its effectiveness with young people had not yet been measured accurately.

The sheriffs agreed that this was a useful provision but not one of which they had made extensive use. Electronic monitoring would be used, it was suggested, only if the alternative would be to remand the accused in custody. While electronic monitoring tended to be used in the sheriff court with offenders in their mid-twenties and younger, one sheriff was concerned that the offenders who appeared in the Youth Court might have greater difficulty adhering to the conditions.

Sheriffs regarded electronic monitoring on bail as useful in ensuring that the relevant authorities were aware of the location of the accused while they awaited their next court appearance. It was also seen as fulfilling an important social function by keeping young people off the streets and thereby addressing local concerns that nothing was being done about young people involved in offending and 'nuisance behaviour'.

Electronic monitoring at this stage in the Youth Court process had also presented some practical difficulties, especially regarding timescales. Proper assessments were dependent upon the social worker being able to visit the family home and this was not always possible on the same day as the young person's first appearance in the Youth Court.

A second practical difficulty had emerged in one case with respect to the interpretation of the wording of the bail condition. One young person, it appeared, had been told by his solicitor that he was not subject to curfew until his tag was fitted when, in fact, the curfew would have applied regardless of whether or not the technology was available to enforce it. Following agreement among the sheriffs, a pro forma was subsequently developed in which the bail conditions were split to make it clearer that the young person was required to remain at home as specified, regardless of whether they were actively being monitored or not.

REPORTS TO THE YOUTH COURT

Once a young person referred to the Youth Court has been convicted, the sheriff may, if it is deemed appropriate, adjourn the case in order that a Social Enquiry Report can be prepared by the social work department ²³.

Social workers and managers considered that the quality of reports for the Youth Court was good. Generally, because their caseloads were still relatively 'light', staff had more time in which to assess young people's circumstances and to prepare their reports. This was viewed in part as a result of the structured procedures in place for the Youth Court. It was noted that the time available to conduct assessments and reports gave workers increased confidence in reports in terms of both quality and quantity.

"Our view is that the quality of the report is improved considerably and I think sheriffs on the whole are reporting that they are happy with the information they are provided with. I think that's one of the positive things (social work manager).

In one local authority, social work managers suggested that sentencers had indicated (at the Implementation Group) that they welcomed direction in the recommendations included in reports.

Both YLS (Youth Level of Service) and LSIR (Level of Service Inventory - Revised) ²⁴ were used to assess young people's circumstances and were generally considered to be both useful and appropriate by social workers. The importance of identifying young people's strengths as well as their difficulties was considered beneficial in targeting services to young people. One worker who used the YLS risk assessment commented that it was particularly helpful for less experienced workers as it provided guidance for conducting assessments. However it was also a useful tool in the context of interagency work.

"It's a more objective way of communicating to other people what you've assessed and how you have reached your conclusions and I think it increases credibility with other professionals"(social worker).

"Prior to them (young people) going to court it is about meeting them and their family, looking at what issues are there for them, what is behind their offending and getting the supports in. It's so much more focussed. I think with the Youth Court you have to have quite a detailed action plan (...) so it is actually working quite intensively with the young person, with all the other supports that you've linked in" (social worker).

The sheriffs were uniformly positive about the quality of the social work reports they received for the Youth Court. Although there had been a few instances in the early stages of reports being produced which were, essentially, standard social enquiry reports, reports were now said to contain more detail and to set out the package of interventions that would be made available to the young person should a probation order or structured deferred sentence (involving social work input) be imposed. Social workers were also expected to make recommendations in their reports and, in the event of a probation order or structured deferred sentence being recommended, to specify the frequency of reviews in the initial stages of the order. Sheriffs acknowledged that social workers were often present in court to speak to the reports should the need arise.

Minor difficulties had arisen with cases that were not clearly identified as being Youth Court cases when assessments and/or reports were requested. This reduced the time available for assessment and report completion. In South Lanarkshire there had been occasions when cases had not been marked for the Youth Court team and were sent to area offices. In North Lanarkshire, the dispersal of Youth Court workers to area offices meant that sometimes workers were unsure when compiling a report on a young person whether or not it was intended for the Youth Court (this issue was being addressed by the Implementation Group).

"It seems that we get asked to do SER's, but we are not actually sure it's going to be a referral to the Youth Court. We can do it on the criteria that is given to us, in other words three offences and the age group, but it's very rarely that we get told it's specifically for the Youth Court (...). At the moment I think they are still having trouble delineating what is exactly going through the Youth Court and how we're passing that out..."(social worker)

SENTENCING

The sentencing powers and options open to sheriffs in the Youth Court are identical to those available in the sheriff court under summary procedures. For some sheriffs, the difference lay in how they were implemented, with some indicating that they would be more likely to consider a non custodial 'package' for a young offender and would be more likely to take advantage of the facility to review the progress of young people given deferred sentences or probation orders. One sheriff also suggested that more time was spent at the sentencing stage in the Youth Court explaining the court's expectations with the young person and addressing the young person directly.

The range of disposals available to the Youth Court was viewed by social workers as appropriate. In particular, the use of probation orders was seen to be helpful in enabling social workers to develop clear action plans to support and intervene effectively with young people. One social work manager indicated that problems may arise with young people who are particularly chaotic and who may have difficulties engaging with orders in the early stages. The criteria set out in the National Standards could mean that such a young person would be breached at an early stage. However, the use of deferred sentences by sheriffs appeared to be useful in avoiding this and were sometimes considered more appropriate than probation orders, where the statutory nature of intervention may not be considered necessary.

Importantly, funding had been made available for structured deferred sentences in the Youth Court, giving social work departments greater flexibility than they had with the adult system. Workers did express some concerns that a number of interventions and services were being used with individual young people and that this could potentially up-tariff young people. Another Youth Court professional acknowledged the importance of adhering to the Youth Court criteria, rather than attempting to fit young people into services simply in order to utilise resources: " We need to be very careful that we don't up-tariff young people just because we have resources in place".

Some respondents also expressed some concern that there may be a tendency in the Youth Court to put young people on social work disposals when they would probably otherwise have received a fine. In a similar vein, some social workers suggested that community-based disposals made in the Youth Court were often lengthy and did not always reflect the offence.

Clerks observed that in the Youth Court more time was spent explaining to the young person the requirements of their orders and impressing upon them the consequences of non-compliance. As one clerk commented:

"Some sheriffs prefer more direct dialogue than others but there's definitely a lot more direct dialogue with the sheriffs and the accused and not through the solicitor, although the solicitor is there."

This was contrasted by another clerk with the normal custody court where " it all happens at a bewildering speed and they don't really know what happened to them till they're out in the fresh air again".

DISPOSAL OF CASES IN THE YOUTH COURT

Guilty pleas

Information about the point in the Youth Court process at which young people pled guilty was available from the Youth Court database in 110 cases ²⁵. These data revealed that 20 young people (21%) pled guilty at first appearance (including one guilty plea by letter), 30 (31%) pled at an intermediate diet and 46 (48%) pled or were found guilty at the trial diet. A further 14 accused pled guilty on answering a warrant.

The Youth Court co-ordinator's report for the period to 30 November 2003 indicated that by that date, eight cases had gone to trial with only three trials adjourned during the period.

Status after first appearance

Information about the status of the accused person after his/her first appearance in court was available in only 51 cases. The majority of accused persons were granted bail (57%). Three accused were remanded in custody while 19 were ordained to appear (37%). Eight young people were made subject to electronically monitored bail (none after September 2003) one of whom was recorded on the database as having removed his tag. Curfew details were available in six of these cases. Five involved curfews from 6pm to 6am while one involved a curfew from 7pm to 7am.

Youth Court disposals

Between June and December 2003, a total of 65 cases were disposed of in the Youth Court, with deferred sentences being passed in a further 35 cases and seven young people being found not guilty or having a plea of not guilty accepted. The advice of the Children's Panel was sought in relation to three individuals, only one of whom was on supervision at the time of referral to the Youth Court. Of these three, one was remitted to the Panel to be dealt with, one was placed on probation with a condition of probation being that he comply with his supervision requirement by the Panel and the third was given a probation order. The sentences imposed in the 65 cases are summarised in Table 4.1.

Table 4.1: Disposals in the Youth Court, June - December 2003

A total of 17 disposals involved a fine. Fines ranged in value from 75 - 1000, with a mean of 325. Twelve young people were given a community service order, ranging from 100 to 240 hours with a mean of 156 hours. Custodial sentences were imposed in seven cases, ranging from three to 17 months and with a mean of six months.

Thirty eight young people were made subject to probation orders which in eight cases contained specific requirements to attend for counselling or to participate in particular projects. Sixteen young people given probation orders were aged 16 and 18 were aged 17. Probation orders were also made in respect of one 15 year old, two 18 year olds and one 19 year old. Twenty-eight probationers were male and four were female, with the sex of the young person missing in six cases. In 15 cases it was indicated at the sentencing stage that the probation order would be reviewed.

Probation orders varied in length from 12 to 36 months, with a mean length of 16.4 months. Thirteen of these orders contained electronic monitoring through a restriction of liberty order (RLO). RLOs were imposed in three other cases, varying in length from one to nine months, with a mean of 3.9 months. As Table 4.2 indicates, curfews were most often imposed overnight, with some tailoring to accommodate young people's circumstances.

Table 4.2: Curfew Periods in RLOs

A detailed analysis of the offences for which young people received different disposals will be provided in the final report. Initial analysis suggests, however, that probation orders were most commonly made in respect of young people convicted of public order offences (including assaults, police assaults and breaches of the peace) and, to a lesser extent, possession of offensive weapons and offences involving dishonesty. The relevant data are summarised in Table 4.3.

Table 4.3: Offences for which probation orders were imposed

The monitoring data also suggested that the four Youth Court sheriffs had disposed of varying numbers of Youth Court cases. From the 81 cases for which the relevant data were available, the number of cases dealt with varied from 17 to 33 per sheriff.

FAST-TRACKING OF CASES

One of the objectives of the Youth Court is to establish fast track procedures for those young persons due to appear before it. Identified young persons should appear in court from custody or by means of police undertaking (more rarely after report to the Fiscal). Other than in exceptional circumstances, Youth Court accused should make their first appearance in court within 10 days (exceptionally 14) from the date of the charge.

This element of the Youth Court was viewed by professionals to be working well. For example, one social work manager noted that most young people were going through the Youth Court system in three months and most outstanding charges were dealt with within that period. This was markedly different to the situation which existed prior to the development of the Youth Court where an individual's offences were dealt with separately and the process could stretch over 18 months. This situation had repercussions for young people, particularly in cases where they may have ceased offending and started to make progress in their lives, only to be faced with the consequences of outstanding charges which dated back some time. Social work managers, along with other professionals, believed that the number of cases involving young people going to trial had reduced during the operation of the Youth Court and attributed this to the incentive of the fast-track process. The focus on the offender rather than the charge was also viewed positively.

Fast tracking was believed by Procurators Fiscal to be working because of the determination of sheriffs to avoid adjournments and the high proportion of pleas in the early stages of proceedings. This in turn is due to 'rolling up' of complaints (bringing together a number of charges under one complaint) and disclosure of the Crown case. 'Rolling up' of complaints tends to result in the accused being less likely to claim that 'it wasn't me'. Fiscals also felt that defence agents saw the benefit in early pleas and were able to offer the incentive to their clients that to plead may lead to assistance with problems that led to offending. Another factor was said to be the Legal Aid process that did not, unlike the normal system, favour agents taking a case at least to intermediate diet.

Sheriffs considered the fast tracking procedures in the Youth Court to have been particularly effective, with few motions for adjournments from the prosecution and fewer still from the defence. As one sheriff observed:

"We have had no difficulty programming the fast tracking and the statistics so far seem to show that the fast tracking is not proving problematic. The short time-scales aren't inscribed in tablets of stone, but it is fairly obvious to me so far that they are cope with-able and are working because the cases have been dealt with within them."

Fast tracking was regarded as most effective in getting young people to court quickly, though once there, it was perceived that most young people tended to plead not guilty. However, there was also a perception among the sheriffs that the Youth Court procedures were resulting in fewer cases going to trial while those that did could be concluded the same day of the trial, thereby going against the 'culture' of adjournments in Hamilton Sheriff Court. This was also possible because time was set aside for Youth Court trials which could potentially be accorded priority over more serious cases which might, as a consequence, have to be adjourned. Whether and to what extent this was happening in practice could not readily be established but it was linked by sheriffs and by clerks to a wider issue regarding court programming and difficulties in 'sweeping' cases for the Youth Court sheriff once the day's Youth Court business had ended ( see Section Seven). Neither is it clear whether and to what extent greater flexibility in the programming of court business (for example, by allocating less time to Youth Court business on days when the workload is anticipated to be low) would help to address these difficulties.

The fast tracking element of the Youth Court was seen as a particular strength by sheriffs because it made a clearer link between the offending and the response to it and because it was seen as improving the administration of justice for all concerned. As one sheriff explained:

"The earlier they are dealt with the better from the point of view of the accused, from the point of view of any victims, from the point of view of the courts system and people working in it. And justice that is delayed for lengthy periods of time loses a lot of the meaning that it should have in my view."

Clerks were also of the view that the process had been effective in getting cases into court quickly and getting trials assigned more rapidly, which in most cases resulted in a guilty plea. One clerk suggested that approximately half of the cases in the wider sheriff court went to trial compared with only one fifth or one sixth in the sheriff Youth Court. The actual sentences passed also appeared to be effective in that there was little evidence to date of re-referrals. However, some suggested that this was being achieved with a large amount of resources being devoted to a relatively small number of cases.

Length of time to disposal of the case

The Youth Court database records the date of first appearance in the Youth Court but not the date of the charges. This meant that it was not possible to calculate the time from charge to first appearance. However, we have already indicated that just under two-thirds of accused appeared from custody. It is therefore assumed that timescales were being met in a high proportion of cases. For those cases disposed of or in which sentence was deferred, it was possible to calculate the length of time between the accused person's first appearance in the Youth Court and the date of disposal. Overall, the time from first appearance to disposal ranged from 0 to 153 days, with a mean of 52 days. This did, however, vary according to the point at which the accused pled or was found guilty. The mean time to disposal was 28 days when the accused pled guilty at first appearance, 49 days following the entering of a guilty plea at an intermediate diet and 62 days in the event of the case going to trial.

ROLLING UP CASES

The Youth Court Information and Reference Document indicates that, wherever possible and practicable, known outstanding and other charges in the system should be rolled up and taken together.

Most agents were of the view that their role was the same as in any sheriff court. In Youth Court cases, the role of the solicitor is not significantly different, except in greater scope for negotiating with Fiscals. The 'rolling up' of complaints means that through negotiations with the Fiscal, the court can, for example, focus only on the most serious of the complaints arising from an incident. Most charges can be negotiated and only the central charges tried. As one put it: 'it is easier to speak to the accused in a more realistic fashion about the chances of success at a trial'. Given that it is generally in their clients' interests to do so, defence agents can also assist the 'rolling up' process by asking the Fiscal to bring pending complaints into the Youth Court process. If a client instructs an agent to proceed to trial, however, they will do so, as is their duty.

From the Fiscal's point of view, the advantages of 'rolling up' complaints outweigh the disadvantage of extra work. Unlike the summary of evidence, which is a relatively straightforward task, 'rolling up' requires labour-intensive administrative work, although this may be reduced by future IT upgrading. 'Rolling up' makes for efficient use of everyone's time and means that the Youth Court, even if seeing relatively small numbers of offenders, deals with relatively large numbers of complaints.

The procedures for 'rolling up' complaints were thought by sheriffs to be working well, with several charges being brought together under a single complaint rather than being prosecuted in 'dribs and drabs'. The only concern raised by sheriffs in relation to this process centred on the limitation it then placed on their sentencing powers if they decided that a custodial sentence was inevitable ²⁷.

Clerks were also of the view that the 'rolling up' of cases was working well and had had the effect of encouraging the accused to tender guilty pleas at an earlier stage in the process.

REVIEW HEARINGS

As the Youth Court Information and Reference Document indicates, Youth Court sheriffs are able to determine in individual cases whether there should be continuing regular judicial oversight of the response of the young offender to some of the community supervision orders which the court makes. This would apply to probation orders, deferred sentences or drug treatment and testing orders. This periodic return to court could be undertaken by means of regular Court Review Hearings. The regularity of such Hearings is at the discretion of the presiding sheriff, taking into account the circumstances presented in each individual case and could, for example, be on a four-weekly basis during the first six months or so of an order and thereafter at suitable intervals depending on the offender's progress or regress.

Defence Agents

There were mixed opinions about review hearings among defence agents, with some solicitors finding them 'awkward' because the presence of members of the public can limit the openness of the exchange between accused and the bench. In general, agents noted that sheriffs were engaging directly with the accused, although the extent of this varied between sheriffs, some of whom were less formal. Some agents said that their role was unchanged during reviews, although some stated that they 'stepped back'. On the whole, however, they still had a role in speaking for the accused when necessary and when asked to do so by the sheriff. Reviews were assisted by the Crown information (such as good behaviour reports) being available on time, in contrast to the regular court.

Sheriffs

The sheriffs appeared to differ in the extent to which they made use of the facility to review orders, though the facility to bring young people to court on a periodic basis to assess their progress was generally regarded positively. Reviews were conducted in open court to ensure the transparency and accountability of the court. As one sheriff explained:

"I mean I don't think you can properly do them other than in an open court. Apart from anything else it is public court, it is public justice supposed to be, with a victim at the back of it who is entitled to be there if they want to."

Defence agents were said by sheriffs to have only a marginally different role in Youth Court cases since young people tended to find it difficult to engage directly in dialogue with the bench (as one sheriff commented, " they are not the most articulate of folk in the most relaxed of circumstances"). For this reason, defence agents were still actively involved in advocating on their client's behalf.

Clerks

One clerk described the purpose of the reviews as follows:

"Just to keep a wee eye on them. You're not wanting to set these young people up to fail and I think sometimes if they just drift into the social work department for two years, 18 months, you are setting them up to fail. It's just to remind them - right, I'm the sheriff, I put you on this probation order. It doesn't mean I've forgotten all about you until a brief report comes in, you know, I want to know how you're getting on."

Another clerk characterised the dialogue between the sheriff and young person thus:

"Honest, encouraging if it needs to be and if it needs to be a wee bit - a wee bit firmer, I think that would sum it up."

One clerk thought that reviews might be more effective if conducted more informally (for example, with the sheriff coming off the bench and sitting round a table with the young person) but considered this to be impractical within the existing court infrastructure. Such an arrangement would probably seem less attractive to sheriffs, who wished to retain the authority and formality of the court.

Social Workers

Social work managers were clear that the purpose of Youth Court reviews was to ensure that the young person was accountable for their behaviour and that service providers were accountable for the delivery of services. The ongoing review of the young persons' circumstances by the court was also seen as an important motivating factor for changing behaviour. However, the way reviews were conducted was still under consideration. The role of the social worker in the review process was not always clear to individual social workers and there had been problems in the early stages when social workers, seated on public benches, were required to address the court from this position. As one respondent explained, when the first review was conducted, the social worker was seated in the public benches and the sheriff " was hollering at the back of the court". Now there are seats next to the dock, but apart from the public benches, which makes it somewhat easier for the social workers to have a dialogue with the sheriffs. This was regarded by one respondent as an improvement:

"Alright, everyone can hear what they're saying but it's not screaming from one side of the court to the other."

However the situation was still considered less than ideal by others:

"We were asked to sit over at the side but you just feel do you have a place in the court? Sometimes someone else is sitting in those seats and when you are sitting in the body of the court and the sheriff wants to speak to you, you've to stand up and you've got all the audience around you. Sometimes it's a bit awkward and I think maybe they could clarify a bit better where we are going to sit and so on." (social worker)

Similarly there was a lack of clarity about the arrangement of reviews:

"I thought we would have meetings with the sheriffs, have a genuine input and contribute to continuations but as far as I'm aware that has not happened yet. (...)There is a bit of unclarity about what people's roles are and where they fit in the system, and what we should be doing about it." (social worker)

"There isn't enough accord at the moment in terms of when you would have a review, why you would have a review, who determines whether there will be a review, what is the make-up of it and our concern from managing the consequence of the review is how influential the review can be in terms of intervention." (social work manager)

One social worker indicated that reviews were conducted on a four-weekly basis in social work offices since they did not always occur at that frequency in the court.

"…We're waiting for directions, someone to turn up and say 'we are having that three monthly review now'. We are having four weekly reviews ourselves so eventually when somebody asks from the court we can say 'here, we've had these meetings, from the meetings this report can be compiled'" (social worker).

It was noted that the approach of individual sheriffs to the review process was seen to vary somewhat:

"My experience (of reviews) would be coloured a bit by whichever sheriff was dealing with the issues because they are all coming from different places and their attitude towards young people can be quite different and the approaches that they take can all be quite different and that is very evident to me." (social worker)

"Not all the sheriffs are convinced of the need for reviews and that was the area which was a bit fraught on the feasibility discussions (…). My argument is you need to be a bit flexible about how often reviews are called and the sheriff should be guided by advice from social work about how frequently these should be but I do think you should have them. Some sheriffs have been more reluctant to go down that road than others." (social work manager)

ENFORCEMENT

Fiscals did not express views about sentencing options, because their role is to remain neutral in relation to sentences. They did, however, report generally high levels of compliance with orders made by the Youth Court and suggested that offenders came back before the sheriff very quickly following any breach. Fiscals have, however, used their discretion in relation to very minor breach offences. They reported minor 'teething problems' in relation to receiving breach papers from the Court.

It was too early for sheriffs to comment on how adequately orders made by the Youth Court were being enforced by the social work department, though the regular reports provided for reviews tended to make this more transparent. There was a view that delays were encountered more generally in the receipt of breach reports from the social work department (though this appears to have been a reflection of delays in the breaches being scheduled rather than in their submission). The enforcement of electronically monitored bail conditions and restriction of liberty orders was thought to work well.

At this point, very few breaches or instances of non-compliance had been brought to reviews - there were only two breaches recorded in the Youth Court database - so social workers expressed some uncertainty with regard to the effectiveness of the Youth Court procedures for bringing breaches or non-compliance to reviews.

OBSERVATION OF THE YOUTH COURT IN ACTION

The Youth Court was observed by the research team at different stages of the specialised court process. Observations were made of the Youth Court sittings in Courts Five and Six of Hamilton Sheriff Court. Thirty-six observations were made by three members of the research team over a period of six weeks. This included observations of first callings, intermediate diet, trial hearings, reviews ²⁸ and breach hearings (Table 4.4) ²⁹. Eleven cases concerning young women (31%) and 25 cases concerning young men (69%) were observed.

Table 4.4: Observation of the Youth Court

The duration of the 36 cases observed varied by the type and nature of case. Table 4.5 offers some indication of the average length of time of the observed hearing.

Table 4.5: Length of Time of Observed Hearings in the Youth Court

Caution is needed in the interpretation of Table 4.5 as 30 per cent of all the hearings observed were continued for a variety of reasons and therefore court business was only partially completed (Table 4.6).

Table 4.6: Observed Completion of Case Business in the Youth Court

Across the eight days in November and December 2003, the Youth Court was observed to start business on average 17 minutes late (after 10.00), with an earliest starting time of 10.06 and the latest starting time observed of 10.48. The Youth Court ended, on the eight days observed, between 11.04 and 13.02 (average 11.55). The Youth Court was recessed on three of the eight days observed, with an average duration of recess being 25 minutes. Non Youth Court business was conducted between Youth Court sessions on three days observed, taking an average of six minutes to complete.

From the observational data, the different elements can be described under three headings: procedural issues, philosophical issues and policy/practice issues.

Procedural issues

A number of observations were made of how Youth Court business was performed and the steps taken to accomplish effective operation of the Youth Court at Hamilton Sheriff Court. Firstly, there was evidence of an adversarial relationship between the Procurator Fiscal and the defence agents, which reflected an adult-oriented, formal courtroom setting. Secondly, there was very little exchange observed between the young person and the sheriff during reviews of probation orders, although on one occasion, the young person's social worker was instructed to identify herself and sit at the bench in order to ensure that she assume a participatory role in the session. Thirdly, it was observed that many of the young people appearing had family and/or friends as supporters for their appearance. On some occasions, family members were asked to identify themselves and on other occasions, the sheriff would ask family and/or friends to speak about their son or daughter. Fourthly, the actions of court officials appeared to make them approachable to the young people (for example, young people were observed asking the Procurator Fiscal or the court police officer for guidance about the procedures etc.).

Philosophical issues

Elements of punishment were discernible during the Youth Court proceedings. Although the majority of the sentences issued in the first few months of operation were community based, there were many warnings issued to the young people about the more punitive sanctions available to the sheriff. Most common was the threat of imprisonment, as the following extracts reveal:

"See this cannabis thing - you're doing well, but you're in deadly bother. The only way you can stop a custodial sentence is no offending now. If you so much as pee up a close you'll be breached. So if you fancy cannabis, think of the jail sentence at the end of it..." (Sheriff)

"You really will receive harsher penalties if you don't sort yourself out." (Sheriff)

"You are in enough bother with an offensive weapon charge and if you come back we'll say that and that can entail a jail sentence and you need to not do it ever again." (Sheriff)

"My Lord, I ask that you do not impose a heavy sentence, such as a jail sentence, as my client is guilty more of immaturity than of offending behaviour that might necessitate a jail sentence." (Defence Agent)

The sheriff's dialogue to the young person also stressed the need for care in light of the more serious sanctions that were available, particularly where there was a breach of the conditions of probation orders or restriction of liberty orders. One sheriff remarked:

"I want you to attend to your probation order like your life depended on it but if you backslide, all bets are off and you're looking at the jail."

There were also many examples of concern over the welfare of the young people observed during court proceedings. There was evidence of advocacy, particularly from defence agents (although it is possibly the case that social workers did likewise in their written reports). Details of mitigating circumstances and factors associated with risk (such as the young age and immaturity of the offenders, parental relationships, the role and effects of alcohol and drugs in the young persons' lives and in some instances, taking on new responsibilities such as personal relationships and children) were conveyed to the sheriff by defence agents who, in their advocating role, were observed as attempting to provide an indication of the young person's situation.

"A matter not touched on in the SER [social enquiry report] is that his mum and dad split up when the first offence happened and his mum stayed with someone else in the area. His dad is of the view that this affected his behaviour, though he does not use this excuse himself. His world has fallen apart around him. Considering that they split up in May, but the lead up to the split up was before and his first offence was April." (Defence Agent)

"It's good you've been keeping your nose clean and its good you've been getting your life sorted out." (Sheriff)

The sheriffs frequently asked about the young person's employment situation and prospects, particularly where restriction of liberty orders were being considered:

"I will not impose a restriction of liberty order in this instance. You have a job and I want you to keep out of trouble." (Sheriff)

"We ask that you take into account my client's employment background. He works in a garage, buys his own tools and earns very little. We ask that you do not impose a heavy fine so that he can utilise his current job to gain more experience."(Defence Agent)

In addition, sheriffs would note the attendance of family members in the courtroom, therefore introducing families into a courtroom discourse that linked significant people in the young persons' lives to reducing offending:

"You have a job, yes, but you must stay away from this group of people who are nothing but trouble. Stay in contact with your Granny, she seems to be the only positive person in your life."

"I think the message is finally getting through and he's getting his life turned around."

"There has been a substantial change in yourself since you were referred."

On another occasion, the sheriff sought the young person's perceptions of his families' reaction to his offending:

Sheriff: This place is full of guys getting into bother. It gets worse and worse, then they take the drink and suddenly instead of a half decent life they're in and out of this place. You shouldn't be here. What's your mother saying?

Young person: She's going off her head.

Observation of various interchanges between the sheriff and the young person indicated that the sheriff endeavoured to 'reach out' to the young person rather than focus solely on their status as an offender. Two examples illustrate this observation clearly:

"You're a decent lad with a decent background… you should be settling down to a decent existence." (Sheriff)

"How did you get to this sorry stage? You are young boy, with so much ahead. I hope that you can alter your behaviour." (Sheriff)

A process of affirming and taking responsibility for offending behaviour was also evident from the interchanges between the sheriffs and the young people:

"Between now and next time I want to hear that you, never mind the social worker, that you get an appointment with the GP and come back saying what you've done to ensure that you don't take substances." (Sheriff)

There was a tacit assumption among some sheriffs that the young person would take responsibility for some aspect of their life (employment, family and friends) and provide feedback about this at the next review. In order to ensure that a process of monitoring young people who appear at the Youth Court is in place, the Youth Court has established a practice whereby the same sheriff will preside over the young person's progress at every stage of the review process:

"Now this is voluntary, not part of the order. I want you to tell me when you come back - this is a suggestion - you go and find out what's available in the local colleges to improve your education so you can get some idea of your future and where your life is going. You've got to get some of the skills you don't have. You come back and tell me what's happening, what you've done." (Sheriff)

Policy and Practice Issues

The majority of offences that were presented to the Youth Court were for housebreaking, weapon carrying, car theft, vandalism of a vehicle and assault on professionals (e.g. police, ambulance workers) and also members of the public.

Observations of the first few months of the Youth Court reveal a process of familiarisation with procedures among those involved in its operation. For example, there was found to be public discussion between Fiscals, defence agents and sheriffs about discrepancies in paperwork, in reports and in the scheduling of reviews. These discussions were sometimes instigated by the sheriffs who would often ask and comment on the procedures being used. Across the rotating sheriffs, there was a public recognition that the sheriff who had imposed the court order generally conducted the review. This resulted in a 'walk on' from a Youth Court sheriff to do a probation review during the Youth Court session.

The observations also show a number of interruptions to court business for locating reports, reading reports, telephoning for paper work (particularly bail documentation) and information. Sometimes, defence agents were not present, social workers were not present when they were expected to be, or the young person did not turn up for sentencing. These, however, are issues that are likely to apply equally in any sheriff court and there is no reason to believe that they were any more prominent in the Hamilton Sheriff Youth Court.

Other policy/practice issues that arose from the observations relate to issues to do with confidentiality and the level of disclosure in a public courtroom of personal details relating to the young person, as illustrated in the following two examples. In one incident the young person was asked about whether she and her partner were likely to resume their relationship. The young person then informed the sheriff that he had died, information that the sheriff did not appear to have available to him. In the second incident the defence agent of a young person indicated that the young person had problems with literacy. The sheriff responded by saying that it would be better for this not to be disclosed publicly, but to be elicited from the reports. These and other examples suggest a need to consider whether, given the public nature of court appearances for young people, a standardised approach to dealing confidentially with sensitive issues should be considered. However, this is an issue that has been recognised within the Youth Court and will be addressed.

Whereas the initial timetabling in the Hamilton Youth Court had a clearly delineated period of time in which Youth Court business was to be conducted, it became apparent as observation progressed that cases of adults and young people were being heard in the same court. Were Youth Courts to be rolled out, consideration might be given to ensuring that the business of youth and adult courts be clearly separated and that there is a dedicated period of time for young people's cases to be heard. Ideally, a separate courtroom could be made available as this might provide an appropriate environment for dealing with the target group, but this is unlikely to be practical in many Scottish locations.

SUMMARY

Procedures and practices relating to sentencing appeared to operate relatively well at this stage in the operation of the Youth Court. Legal Aid arrangements were straightforward and there was a general perception that fast-track procedures were effective and had resulted in a reduction in the number of cases going to trial. Similarly the 'rolling up' of cases was generally seen to be working well. Social enquiry reports were viewed very positively and the assessment and detail of information provided was considered to make an important contribution to the court process. The availability of resources was welcomed and a range of interventions could be accessed to meet the needs of young people. It was noted however, that services should be used appropriately.

Between June and December 2003, a total of 65 young people were sentenced in the Youth Court, with deferred sentences being passed in a further 35 cases and seven young people being found not guilty or having a plea of not guilty accepted. Thirty-eight young people were made subject to probation orders, 13 of which included a restriction of liberty order (RLO) with electronic monitoring. RLOs were imposed in three other cases. The periods of electronically monitored curfews varied in length from one to nine months, with a mean of 3.9 months. Curfews were most often imposed overnight, with some tailoring to accommodate young people's circumstances.

The opportunity to include electronically monitored curfews as a condition of bail was welcomed by sheriffs, though the provision has not been used extensively. It was seen as useful in ensuring that the relevant authorities were aware of the location of the accused while they awaited their next court appearance and addressing community concerns about young people involved in offending and 'nuisance behaviour'. However, electric monitoring on bail had presented some difficulties in practice.

Review Hearings elicited a mixed response from Youth Court professionals in terms of: their purpose and procedures; a lack of clarity about certain aspects of the review process; and issues such as confidentiality and dealing with sensitive material in open court (steps were being taken to address these).

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