The waiting game

In his first blog as a CYCJ Associate, David Orr considers the delay between a sexual offence being committed and subsequent court proceedings, and the impact this can have on victims, perpetrators and the public.

According to Youth Justice Board (YJB) statistics it takes on average 295 days from the date of a sexual offence being committed by a child or young person (in England and Wales) until completion of court proceedings. I am unsure of the equivalent Scottish figure but I would be surprised if it is any lower and, anecdotally, long delays seem to be the order of the day. If a case is being prosecuted on indictment this generates some serious challenges in relation to public protection and safety planning.

While Allardyce and McAfee (2016) provided some useful pointers in relation to ethical decision-making when young people are involved in serious offending behaviour, it can feel like a minefield for practitioners. “Innocent until proven guilty” is one of the central tenets of our criminal justice system and it is for the prosecution to prove an individual’s guilt beyond reasonable doubt through adversarial proceedings rather than the accused being required to prove his innocence. Add into the mix the standard legal advice given to any accused to give a “no comment” interview at the point of arrest, and the potential for lengthy delays in legal decision-making is clear. One wonders how well is the public served by these features of the system?

My advice to a young person in a social work capacity is always “put your hand up to what you have done but never accept responsibility for something you have not done”. I am also pretty convinced after a fair few years in this field that “justice delayed is justice denied”. Long delays in legal decision-making seem of little benefit to victims, to perpetrators or to the public at large.

It might be worth considering a hypothetical scenario. Let’s imagine a 16 year old male gets a knock on his door in the early hours of the morning to be greeted by police officers. They have arrived to arrest him in connection with intelligence which has come to light through the work of the cybercrime team about his being in possession of inappropriate images and engaging in abusive exchanges with young people under the age of 12 on social media. The young person has no previous history of social work involvement and no previous experience of the criminal justice system. He resides at home with his parents and two younger sisters aged eight and 13. What happens next? In all likelihood he will be taken to the police station, some or all internet-capable devices in the home will be seized as evidence, he will be processed as an adult and most probably represented by a duty solicitor. Like a rabbit in headlights, he will remain in custody until his appearance in court the following day where a decision will be made as to whether he will be remanded in custody or released, most probably subject to stringent bail conditions. Consideration may even be given by the police to application for a Risk of Sexual Harm Order (RSHO). His return home may be stymied by any child protection process triggered by his arrest and unanswered questions about how safe or unsafe he may be residing with younger female siblings.

Assuming he is released to some community-based address, that’s when the waiting game begins. If the knock on the door occurs in October 2016, when can he expect to go to trial if he intends to contest the charges? Is October 2017 realistic? Probably not if there is a lot of forensic evidence to be reviewed. Could things drag into 2018? If he was attending school, will he be allowed to return? If he is alleged to have committed non-contact sexual offences online, does this automatically translate to a risk of committing contact sexual offences offline?

Granted, these questions are ones that ought to be addressed as a matter of urgency through a Care and Risk Management (CARM) meeting. As for any risk assessment, formulation and direct work to address risks, needs, strengths and vulnerabilities, this will be contingent on the young person and his family’s willingness to co-operate and engage on a voluntary basis. Even with his consent for such work to take place, the practitioner will be limited significantly as regards what discussion can be had with the young person in relation to the allegations. The fear of contaminating evidence and winding up as a potential witness in a future criminal trial can lead to the “elephant in the room” phenomenon whereby practitioners build as comprehensive a picture as possible of the young person’s situation and circumstances, informed by their own clinical judgement and a relevant risk assessment but dance awkwardly around the specific details of the alleged offence(s). The important who, where, what, when, how and why questions that can easily be asked when preparing a Criminal Justice Social Work Report (CJSWR) after guilt has been established have to be modified, reframed or simply put uncomfortably on the back burner.

In my humble opinion, we need to be investing serious energy and resources into oiling the wheels of justice. Fairness ought not to be sacrificed for the sake of speed but at present things move too slowly and seem to serve the best interests of no-one. Is there greater scope for the Children’s Hearings System to play a role in proceedings? In the scenario outlined, if the young person was aged 15 the case would be “jointly reported” and there would at least be the option for the Children’s Reporter and the Procurator Fiscal to have a meaningful discussion about the forum best placed to address concerns. Unfortunately the Lord Advocate’s Guidelines serve as a pretty significant barrier at the current juncture towards any imminent culture change.

Basically, if the allegations are of sufficient seriousness to merit prosecution on indictment the Children’s Hearings System will almost always be trumped by the Court “in the public interest”. For young people aged 16 and 17 not subject to a Compulsory Supervision Order (CSO) the debate cannot even be had as the Court will be the only forum in which matters can be adjudicated. Time for a rethink perhaps?

About our blogger

David Orr is Senior Practitioner at Edinburgh Young People’s Service where he is involved in frontline social work practice with children and young people involved in offending behaviour, both in the Children’s Hearings System and the Criminal Justice System. Read more.