#2 Fighting Racial Injustice: Police station, diversion, CCE, effective participation, remand & sentence

The 1999 Macpherson Report confirmed what Black, Brown and Racialised communities have said for decades: UK police are institutionally racist.1 Countless examples exist of the systemic racial violence that permeates policing across the country, from the fact that the police use restraint and tasers four times as often on Black people, to Black people being twice as likely to die in police custody than white people.2

This context is vital to informing legal professionals about how Black children in particular experience police stations, and should be central to how lawyers support them to navigate this racialised environment. The National Police Chiefs’ Council (NPCC) has given guidance on the fact that police officers should avoid arresting children wherever possible and custody should be used as a last resort.3

Child-only custody suites do not exist, meaning that detained children are subjected to adult conditions regardless of their additional rights and entitlements. The young people in our working group told us that there is widespread distrust of anyone in the police building due to their perceived affiliation with police.

On arrival

On arrival at the police station, you should review the custody record in full and look out for indications of mistreatment. Be alive to the reality that mistreatment may be rooted in racism, and consider the impact on a child or young adult experiencing it.

Consider the following:

• The child or young adult is most likely to experience racism and trauma during arrest and while in custody.
• Note the length of time between arrest and arrival at the station. Ask the young person about their arrest and transfer to the station – delays can be indicative of issues having arisen.
• Consider the grounds for detention. Is detention really necessary? If not, consider making representations that the young person is released and interviewed at a more appropriate time and location.
• Ascertain whether a strip search has been carried out, as is disproportionally likely for Black, Brown and Racialised young people.4 Given how frightening, traumatic and humiliating the experience can be, consider the impact on a child or young adult.5 If appropriate, make representations about the necessity and manner in which the search was conducted and ask for them to be recorded.
• Consider whether the young person’s basic welfare needs have been met – have they slept, eaten and had their mental and physical health assessed? If you have concerns, ask for these concerns to be recorded.
• Consider who has been notified of the young person’s arrest. Have any family members contacted the station? Take note of their details.
• What property was the young person in possession of on arrest and arrival? Are there red flags for exploitation?

Disclosure

In addition to standard disclosure questions, ask the officer for information particularly relevant to Black, Brown and Racialised children and young adults – for example: 

• What were the grounds for arrest?
• What are the details/wording of any alleged identification evidence?
• What antecedents or associations are being relied on by the police?
• Is there any body-worn video (BWV) footage to view?

Early identification of any potential racism in an investigation enables you to challenge the proposed evidence from the outset.

Appropriate adults

Appropriate adults are primarily responsible for ensuring the welfare of children in custody. They can be parents, carers, another adult known to the child or, if none of these are available/appropriate, independent volunteers. All appropriate adults carry out a statutorily defined role limited to supporting children in custody and during an interview.6

However, when a volunteer appropriate adult is used, they are only present for a small percentage of the time the child is detained – usually not much more than the interview. Often, they do not speak or intervene during the interview and have little meaningful engagement with the child.

When a parent acts as an appropriate adult it can bring its own difficulties. Parents bring their own fears and experiences to the process. Emotions may be running high, the family dynamic may be complicated and external factors – for example, childcare commitments for other children – have an impact. You should not assume that a child client is being adequately supported by the appropriate adult.

You must instead help the child navigate the complex, hostile environment of the police station. Appropriate adults are also likely to feel disenfranchised in the space. You should engage with them, so they become an ally, and perform their role in a more impactful way. You and the appropriate adult both raising the same concern together will be more effective than you raising it alone.

In interview

You should work to ensure that the interview process is adapted to take account of the child’s or young adult’s age and any communication difficulties they may have. This will involve spending considerable time getting to grips with what the child or young adult is able to understand and how they communicate. You should then negotiate with the police about how they put their questions. This negotiation can take place in advance of and during the interview.

In addition to all the standard reasons for intervening in interview, consider expressing any concerns about racist comments made, or racist undertones to an officer’s language, for the benefit of the tape.

Police bail

Black, Brown and Racialised children are arrested at a disproportionately high rate to their white peers.7 It follows that they are disproportionately refused bail and detained overnight. Police bail decisions for children operate with a different legal framework than those for adults.

Consult the YJLC legal guide on police bail and remand for children8 for a comprehensive understanding of the issues.

Some key points and actions on police bail and remand for children and young adults are as follows:

• Insist on being present (in person or on the telephone) at the point the bail decision is being made.
• Be proactive in calling the station, and regularly remind them that you need to be present.
• If the bail decision is made without you, ask the custody sergeant to review the decision and take that opportunity to make representations / propose bail conditions.
• Request an email address from the custody sergeant so that you can also set out your representations in writing.
• Ask the custody sergeant to set out why the proposed bail conditions are not acceptable.
• Ask the custody sergeant for the contact details of the person they have been liaising with on the local authority Emergency Duty Team (EDT). This is the person who will be researching the availability of secure accommodation.
• Contact the EDT (contact details are available on local authority websites) and ask why they don’t think the child is suitable for local authority accommodation or what the issue with availability is. If you are not provided with a satisfactory response, request to speak to a manager.
• Inform the custody sergeant that you are liaising with the EDT regarding a placement for the child – a proactive attitude can influence the police response.

Diversion schemes have reduced the number of children being formally processed in the CJS, but this has disproportionality benefited white children.9 The statistics show that the proportion of first-time entrants from a white background has fallen over the last ten years from 83 per cent to 73 per cent, whereas the proportion of Black first-time entrants has increased from ten per cent to 18 per cent.10 The proportion of first-time entrants from an Asian background has increased from five per cent to eight per cent over the same period.10

Out-of-court disposals

Out-of-court disposal (OOCD) is a term for outcomes given to children as alternatives to being charged and prosecuted for a criminal offence.

OOCDs: key points

• All OOCDs require an admission of guilt.17
• There is no limit to the number of OOCDs a child can receive.18
• Previous convictions are not a bar to receiving an OOCD.19
• Offences with an ACPO gravity score of three or below, or with a higher gravity score and mitigating factors, should always be considered for diversion.20 
• There is a plethora of guidance for the police, CPS and YOT to consider when deciding whether to divert a child, including:
  • CPS legal guidance, ‘Youth offenders’21 
  • YJB and MOJ, ‘Youth out-of-court disposals: guide for police and YOTs’22
  • YJB, ‘How to use out-of-court disposals: section 1 case management guidance’.23
• No youth cautions, youth conditional cautions, reprimands or warnings will be automatically disclosed on standard or enhanced criminal record checks.24
• On enhanced criminal record checks, the police have the discretion to disclose any non-conviction information from the PNC that they consider to be relevant.25 The over-policing of Black, Brown and Racialised children and young adults means there is more data held about them on the PNC and therefore puts them at higher risk of this occurring.

Criminal exploitation is particularly pertinent for Black, Brown and Racialised children and young adults. Victims of exploitation need to be recognised as victims, not treated as perpetrators.

YJLC’s legal guide31 on child criminal exploitation (CCE) explains the relevant legal framework, helps practitioners identify when child suspects are potential victims, and know what steps to take next.

Key points

• CCE ‘occurs when an individual or group takes advantage of an imbalance of power to coerce, control, manipulate or deceive a child ... The victim may have been criminally exploited even if the activity appears consensual. Child Criminal Exploitation does not always involve physical contact; it can also occur through the use of technology’.32 
• ‘Child trafficking’ is defined as the recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation.32 Therefore, victims of CCE can also be defined as victims of trafficking (VoTs). 
• CCE was first recognised as occurring within ‘county lines’ drug-dealing operations. ‘County lines’ was originally the term used to describe gangs involved in exporting illegal drugs within the UK, using dedicated mobile phone lines. The gangs exploited children to move and store the drugs, using coercion, intimidation and violence.33 
• The face of county lines is constantly evolving, and the COVID-19 pandemic had an impact on operations.34 The county lines model is shifting towards more traditional forms of modern slavery in which child and adult victims are used as commodities. Points to note:
  • the activity is becoming more localised, and children are being exploited into committing crime close to home
  • the criminal activity has moved beyond drug supply into a range of illegal economies
  • children are being sold by exploiters onto different county lines networks
  • sometimes there is no grooming – young people are approached on the street and immediately taken to county lines locations.
• Where it is believed that a young person is a VoT, they should be referred to the National Referral Mechanism (NRM).35 The competent authority will then decide whether they have reasonable grounds to believe the child is a victim of trafficking, and if so, will determine whether they have conclusive grounds of the same. It is crucial that lawyers are aware of the trafficking indictors36 as well as the NRM processes, as evidence of trafficking is material to any defence raised under s45 Modern Slavery Act 2015.
• A positive conclusive grounds decision, along with other evidence of exploitation, can be used in representations to the CPS, to argue that a case should be dropped before charge, or discontinued on evidential or public interest grounds.
• The Brecani37 judgment, approved in AAD,37 states: ‘The CPS will ordinarily wait to know the outcome of a referral to the Competent Authority before deciding to charge or continue proceedings where it is suggested that the offence was committed because of relevant trafficking or coercive behaviour.’ The judgment should not result in increased numbers of VoTs being prosecuted and a positive ‘conclusive grounds’ decision is critical to defence representations against prosecution. In the VCL judgment,38 the European Court of Human Rights (ECtHR) makes it clear that where the SCA has concluded that someone is a VoT, the prosecution should have clear reasons for rejecting the SCA’s opinion.
• Expert evidence on trafficking and modern slavery remains admissible at trial in these cases, providing the suitability of the expert is considered and as long as the expert is giving evidence in relation to relevant matters which are outside the knowledge of the jury.39

Institutional racism and adultification can result in Black, Brown and Racialised children being labelled as ‘bad’ and assigned as having behavioural problems at school. Black boys are four times as likely to be permanently excluded from school,49 and the rates are worse for Gypsy and Traveller children. The vast majority of children in detention have been excluded from school.50

You need to be aware that young Black, Brown and Racialised clients may well have undiagnosed special educational needs (SEN) or mental health conditions. Lawyers representing children, particularly those at risk of having additional vulnerabilities which have been overlooked, need to accept there will be extra work necessary to get to the bottom of the potential underlying issues. Request psychological assessments for all children who have trouble giving instructions or who have had periods outside education.

YJLC’s legal guide on effective participation and fitness to plead provides detail on navigating the legal framework.50 YJLC’s toolkit on instructing an expert51 is also a useful tool in these cases.

Key points

• It is your responsibility to remind the court of the special status given to children in the criminal justice system.52 
• Consider:
  • whether the young person is fit to plead
  • whether the young person can effectively participate and
  • what modifications or special measures may be necessary to ensure their participation.
• A trial in which a young defendant cannot effectively participate may amount to a breach of their Article 6 ECHR rights (right to a fair trial).
• To enable ‘effective participation’, which includes ‘the right to hear and follow proceedings’, the Judicial College Equal Treatment Bench Book (ETBB)53 states that the defendant needs to:
  • be informed clearly and in detail, and in language which they can understand, of the nature and cause of the accusation against them - have a broad understanding of the trial process and what is at stake
  • be able to understand the general thrust of what is said in court - be able to understand what is said by the prosecution witness and be able to point out to their own lawyers any statement with which they disagree.54 
• How this is practically applied can be guided by relevant case law, in the ECtHR55 and in the domestic courts.56 This includes:
  • keeping the young person’s level of cognitive functioning in mind
  • using concise and simple language
  • having regular breaks
  • taking additional time to explain court proceedings
  • being proactive in explaining and ensuring that the young person understands the ingredients of the charge
  • explaining the possible outcomes and sentences and
  • ensuring that cross-examination is carefully controlled so that questions are short and clear and frustration is minimised.
• Argue for modifications as suggested by experts such as psychologists, speech and language therapists or other professionals who know the child. Familiarise yourself with the available modifications as set out in the Criminal Practice Directions (CrimPD) 3G57 while bearing in mind these are not exhaustive and the court retains an inherent power at common law to make any modifications necessary to ensure a young person’s effective participation.58
• You can also argue the welfare duty59 and ‘best interests’60 to support applications for any modifications to the court process that are necessary to ensure the young person’s effective participation and mitigate their experiencing intimidation or distress.
• The court is under a duty to take ‘every reasonable step’ to encourage and facilitate the participation of any person.61

Disparity 

Black, Brown and Racialised children are remanded more frequently and for longer periods of time than white children. They also receive harsher and longer sentences that their white counterparts. This is evident from the following:

• All Black, Brown and Racialised groups were more likely to receive custodial remand and less likely to receive community remand compared to white children.62 
• In almost all cases, Black, Asian and Mixed ethnic groups were more likely to receive harsher sentences than white children.63
• In 2020/21, more than half of children in custody were from Black, Brown or Racialised backgrounds – with 29 per cent being Black,64 despite Black children only making up four per cent of the general 10- to 17-year-olds in the 2011 population.65

How to challenge racial disparity in remand and sentencing decisions

1. Advance race in decisions on bail and bail conditions

The prosecution may oppose bail on grounds which are informed by unconscious bias and/or racial stereotypes. Listen carefully to the prosecutor’s wording and tone. For example, are references to the young person’s associates, the location of their home or description of their education status presented in a manner indicating bias or racial stereotyping? These prejudices may inform fears regarding the commission of further offences, interfering with witnesses and failing to surrender. Decision-makers may also make bail decisions and impose bail conditions on the basis of similar assumptions.

You should challenge these racist narratives, even if they are unconscious:

• check and if necessary enhance your own cultural competence
• make arguments based upon the particular circumstances of the young person’s life, informed by the young person’s voice
• provide an unbiased and properly informed consideration of risk factors and mitigate accordingly
• explicitly rebut arguments premised on racial bias.

One way you can illuminate any differential treatment (to yourself and subsequently to the court) is to give thought to experiences of similar cases where their client was white, how the prosecution framed objections (if they did), and how they dealt with that client.

2. Challenge discriminatory risk assessments

In 2021, HM Inspectorate of Probation (HMIP) inspectors found ‘significant deficits’ in the quality of work conducted by youth offending services and partner agencies with Black and mixed heritage boys.66 The AssetPlus assessment tools created by the YJB in 1999 and used by YOTs to measure a defendant’s risk of reoffending, are acknowledged to be racially biased.67 Black children are assessed as riskier than children of any other ethnicity – a trend that cannot be explained by offence-related or demographic factors.68 You should consider:

• ensuring that you can obtain the AssetPlus – this is often not readily available at court and you may need to formally request it
• providing the YOT with accurate and up-todate information about the child
• providing evidence of the racially biased elements of AssetPlus, once received
• inviting the YOT to comment on where the risk assessment tool is racially biased – it was not created by them but by the YJB
• challenging an adverse risk assessment by YOT/probation by calling the reporting officer to give evidence as to the formula engaged to assess risk
• assessing whether it would be appropriate to commission an independent assessment of risk, for instance by a psychologist, independent social worker or probation officer – however, note that any engagement in the ‘risk’ narrative can be counterproductive, particularly if independent reports are adverse to the client’s interests, so this tactic may only be useful in certain cases
• presenting the sentencing court with the research pointing to racial discrimination at sentence.

3. Challenge adultification69

Counter a sense of adultification of Black, Brown and Racialised children and young adults by practising the following:

(a) Challenge adultification in the pre-sentence report

• Challenge language which adultifies children and ask for the report to be amended.
• Call the YOT/probation officer to give evidence and justify their use of this language.
• Challenge the language of the prosecutor or the decision-maker if it contains racially motivated connotations – even if these might appear subconscious.
• Invite the court to scrutinise the pre-sentence report for racial bias.
• Place what may appear to be ‘pro-criminal’ choices in their wider context. For example, so-called gang associates/affiliations. It is critical that the court understands that engaging with gangs or members of so-called gangs may be essential to everyday survival in the area where the client resides and/or that gang members are not always engaged in criminal conduct. They typically play sport, go to school and socialise in the same places where the client does, so contact is often inevitable.
• When challenging a pre-sentencing report, frame any areas of concern first with a recognition that YOT/probation have a challenging role, and that their role and efforts in completing the report are graciously received. An un-tempered critique of the report is unlikely to be received well by the court.

(b) Commission an independent psychological report The report should address the defendant’s youth, vulnerability, emotional and developmental needs.

An opinion should be sought on general matters such as:

• level of maturational development
• cognitive ability
• mental health
• family background.

An opinion should be sought on sentence-specific matters including:

• antecedent history, and whether any conclusions as to risk of reoffending and emotional maturity may be drawn from this background
• the offence(s) in question, and whether the facts speak of an enhanced level of emotional maturity and/or risk of reoffending. The expert’s view on a suitable disposal and in particular what an appropriate community sentence would look like and the benefits of this approach.

(c) Ensure that any pejorative, adult labelling is challenged during your plea in mitigation and that simple language is used both so the child can follow and to remind the court they are sentencing a child.

4. Ensure judicial acceptance of community-based character referees

Sentencing courts may be reluctant to accept character evidence, especially if given by community leaders from Black, Brown and Racialised communities.

Take written statements or letters of support. Consider calling a character referee to give sworn evidence. The ability of the sentencing judge to test the evidence may allay judicial concern about the evidence.

Also robustly challenge any suggestion that this evidence is not legitimate based on racial assumptions and/or prejudices about Black, Brown and Racialised communities.

5. Advance race as mitigation

Always consider raising a child or young adult’s race as part of mitigation – see below for advice on doing so. Discuss the strategy with your client and ensure that you have their consent.

Consider presenting the research and guidance relating to: disproportionality in OOCD, remand and sentencing outcomes, and the disparity of experience and inherent racism of the CJS towards Black, Brown and Racialised children and young adults.

Sentencing remarks

The primary focus of a child’s sentencing hearing should be rehabilitation.80 Section 37 of the Crime and Disorder Act 1998 makes clear that the principal aim of the youth justice system is to prevent offending by children and young people, and s44 of the Children and Young Persons Act 1933 sets out that every court shall have regard to their welfare.

Research conducted by Professor Kathryn Hollingsworth has pointed to the capacity of a sentencing hearing to fulfil a wider, more holistic objective.81 Professor Hollingsworth’s research identifies two problems that can be solved by the innovative approach set out below:

1. The majority of children report a negative experience of sentencing: high anxiety, low understanding, and that they do not feel ‘seen’ or understood.
2. Poorly written/delivered sentencing remarks lead to lack of trust and may impact compliance.

Approaching the delivery of sentencing remarks by bringing into effect sentencing principles, procedural justice principles and relational communication principles82 may achieve the following benefits:

• an increase in the young person’s understanding of the outcome and ability to contribute to future decision-making (eg any appeal)
• an increase in the young person’s trust in the CJS
• helping the young person’s reintegration into society
• influencing the sentence to achieve better outcomes for children

What role can practitioners play?

Practitioners should advocate for the sentencing court to deliver sentencing remarks that fully incorporate the following principles. This could be done in oral submissions by representatives on conviction or at the beginning of a sentencing hearing:

1. Law relating to sentencing principles

• Domestic and international law83 and guidance84 requires the delivery of sentencing remarks in ordinary language that is capable of being understood by the young person. • In practice, this means the delivery of sentencing remarks that: - ensure that the young person understands the sentence passed - are clear - have an individualised and language, tone, and structure - are conducive to the young person’s welfare and reintegration.

2. Relational communication principles85 

• A relational communication style involves:
  • explaining the judge’s role
  • checking that the information given to the court does not include stigmatising or discriminatory language
  • stressing the child’s status as a child and the child’s capacity for change
  • ensuring that the court is aware of the young person’s accomplishments, strengths, ambitions etc.

The sentencing judge should be asked to incorporate all these principles in the sentencing remarks.

• Focus on the young person’s future Young people respond positively to being given hope either in the form of a second chance or encouraging comments about what they might achieve in their future lives.86
• Ensure sentencing remarks are accessible to young people. The case has been made for judgments to be written in such a way that is accessible for children and young adults: to adopt a child-centred approach to decision-making and promote young people’s access to justice.87 Sir Peter Jackson’s judgment in Re A (letter to a young person), a decision from the family court, is notable in this regard.88 You should consider whether to invite the court to provide the sentencing remarks in such a format, for instance by letter or pictorially, citing the requirement to meet the relevant sentencing principles for children outlined at point 1 above. Written representations could be of assistance. Where the sentencing remarks are not written in an accessible way, a child-focused approach can be achieved where the young person is able to react and reflect on them in a less intense environment than the courtroom. This may involve you sitting with child clients after sentencing hearings and taking them through the remarks and carefully explaining decisions and reasons at each point.

Written by Zehrah Hasan (Garden Court Chambers) in collaboration with the Youth Justice Legal Centre. Thank you to the young people who generously shared their experiences with us. Thank you to our expert advisory board: Aika Stephenson, Garry Green, Junior Smart, Sandra Paul, Kusai Rahal, Danielle Manson,Alexandra Wilson and Keir Monteith QC.