9 Oct 2020Legal updates
Recordings from past eventsCriminal Practice Directions
This guide assists lawyers representing children in the criminal courts and explains how the Criminal Practice Directions can support in this context. The Criminal Practice Directions supplement the Criminal Procedure Rules by guiding judicial discretion, detailing a range of adjustments that should be considered in all criminal cases that involve children.
Published June 2021 (Updated August 2023)
This legal guide is intended to assist lawyers representing children in the criminal courts and explains how the Criminal Practice Directions1 can support in this context. The Criminal Practice Directions (CrimPD) supplement the Criminal Procedure Rules (CrimPR) by guiding judicial discretion, detailing a range of adjustments that should be considered in all criminal cases that involve children. The new Criminal Practice Directions were issued on 19th April 2023 and came into force on 29th May 2023. The new CrimPD has been drafted to contain only necessary information, and in a more accessible style. Paragraphs that restate the law (statute, case law, and CrimPR), that are descriptive only, or that refer to information in other guidance have been removed. Throughout this guide, we refer to both the Rules, the CrimPR, and the Practice Directions, the CrimPD.
It is well known that many children appearing in criminal courts have communication or learning difficulties.2 They are disproportionately likely to have a neurodisability, mental health problem or to have suffered a traumatic brain injury.3 These factors, as well as age and normal adolescent development, can make it difficult for children to participate in criminal proceedings, particularly in the Crown Court.
Defendants have a right to effective participation when they appear in criminal proceedings. This right has been articulated by the European Court of Human Rights (ECtHR)4 through Article 6 of the European Convention on Human Rights (ECHR), ‘right to a fair trial’. The CrimPD is the key domestic provision that sets out in detail ways to implement that effective participation right – it details a range of adjustments to proceedings that should be considered when children appear in the criminal courts.
The CrimPR are the ‘rules’ governing the practice and procedure to be followed in the criminal courts.5 They are secondary legislation.
The CrimPD, on the other hand, are not secondary legislation. They:
The CrimPD permits the use of modifications to the trial process, including:8
In 1999, in the case of V v UK13 the ECtHR was asked to consider whether there had been a violation of Article 6 of the ECHR where two very young children had been tried in the adult Crown Court. The defendants were 11 years old at the time of their trials, and both had learning difficulties. The court had to decide whether the children had been able to ‘effectively participate’ in their trial.14 The ECtHR was critical of the way England and Wales treated young children in the criminal justice system, stating that: ... it is essential that a child charged with an 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.15 The ECtHR further noted that proceedings involving children in the adult Crown Court should be conducted in such a way as ‘to reduce as far as possible [the child defendant’s] feelings of intimidation and inhibition’.16
The decision led to domestic reforms for children in the criminal justice system in England and Wales in the form of a Criminal Practice Direction – ‘Practice Direction (Crown Court: Young Defendants)’ – issued in 2000 by the then Lord Chief Justice (Lord Bingham), which set out the steps that should be taken in the trials of ‘young defendants’.17
In 2000, the CrimPD applied specifically and exclusively to young defendants, which it defined as ‘children and young persons’, aligning with the language of other legislation concerning children. Since 2000, there have been various amendments and overhauls that have extended the protective elements of the CrimPD to include all vulnerable people in court, whether children or adults. This legal guide explains the CrimPD as it can be applied specifically to children in the criminal courts. It should be used alongside other law, rules, and guidance; some of which is referenced in the CrimPD but some of which is not.
The CrimPR state that the parties are under a duty to alert the court to any potential impediment to the defendant’s effective participation in the trial.18
The court is under a duty to:
The court discharges the duty by (a) identifying the needs of witnesses at an early stage and (b) making provision for arrangements (whether statutory special measures or other modifications to the trial process) to meet those needs.
‘Every reasonable step’ must be taken to facilitate the participation of any witness (whether ‘vulnerable’ or ‘intimidated’), including the defendant.28
Facilitating participation includes:
enabling a witness or defendant to give their best evidence and
enabling a defendant to comprehend proceedings.
The pre-trial and trial process should, so far as is necessary, be adapted to meet those ends.
Advocates should consult and follow the relevant guidance in the Advocate’s Gateway toolkits29 whenever they prepare to question a young or otherwise vulnerable witness or defendant.
Judges should also use the toolkits to aid case management
Intermediaries are ‘independent of parties and owe their duty to the court’.32
The process ‘begins with assessment by an intermediary and a report’.33
The CrimPR states that the court must exercise its power to appoint an intermediary to facilitate a defendant’s effective participation in the trial where the defendant’s ability to participate is likely to be diminished by reason of age, if the defendant is under 18.36 The CrimPR give special consideration to providing intermediary support to those under the age of 18 and the impact on their ability to ‘give evidence, and understand what is said and done by the court and other participants’37 which should be considered alongside 6.2.8-6.2.9 (above).
In addition to the specific criteria of age, at 18.23(2) the CrimPR set out the matters the court must consider when asked to exercise its power to appoint an intermediary for a defendant:
Defence representatives should remember that special measures under the YJCEA 1999 and CrimPR Part 18, including the use of a live link, are available to defence as well as to prosecution witnesses who meet the statutory criteria. Guidance on the use of live link was previously included in the CrimPD (3N). It is now contained in the guidance issued by Lord Chief Justice (see fn40 above) and defence representatives should refer to this guidance. This includes:
The provision of written sentencing remarks can be helpful and in the case of a young or otherwise vulnerable defendant is to be encouraged.
Defence representatives should request written sentencing remarks from the sentencing judge. This helps facilitate children’s understanding of the outcome. Defence representatives may also remind the court via a welfare note (CrimPD 6.4.2(j)) of the child’s communication needs; and refer the court to the guidance in Appendix II of the Crown Court compendium: Part II Sentencing41 which contains a glossary of terms used in adult courts with suggestions for age-appropriate alternatives.42
The need to sit in a court in which communication is more readily facilitated.
Court familiarization visit before hearing.
If an intermediary is being used, intermediary attendance at pre-trial visit.
If use of live link is being considered, a practice session.
Allowing (subject to appropriate security arrangements) a child defendant to sit with members of their family or others in a like relationship or with another suitable supporting adult (such as a social worker) in a place which permits easy, informal communication with their lawyers.
A suitable supporting adult should be available throughout proceedings.
Removal of robes and wigs, taking into account the wishes of vulnerable defendant and vulnerable witness.
Security staff for child defendant in custody should not be in uniform.
No recognisable police presence in the courtroom save for good reason.
Where appropriate the defence will provide information about the defendant’s welfare.
Restriction on the attendance of members of the public to a small number, perhaps limited to those with an immediate and direct interest in the outcome.
Restriction on reporters attending to a number that is practicable and desirable, although the public has a right to be informed about the administration of justice.
Written by Professor Kathryn Hollingsworth and Shauneen Lambe in collaboration with Claire Mawer, Katya Moran, and Laura Cooper at the Youth Justice Legal Centre. With thanks to Daniella Waddoup (Doughty Street Chambers).
This guide was produced by the Youth Justice Legal Centre, part of Just for Kids Law, in collaboration with The Children’s Rights Group at Doughty Street Chambers, and funded by The Dawes Trust.