TIME FOR A NEW HEARING ANNEX A

INTERNATIONAL ANALYSIS: PANELS, TRIBUNALS AND COURTS

1. This Annex analyses in detail 16 community panel, tribunal and court systems around the world. They deal with accusations of crime and anti-social behaviour, mainly by children, and a selection of other public or civil law decisions. Each system is covered by a template setting out in a standard format how it works, available statistics and main research findings. The format is designed to assist access to particular types of information and comparison of the different systems. The material is descriptive, i.e. of the systems and known research findings. This material formed the basis for our conclusions as to what these systems might and might not offer as models for reform of how child offending and anti-social behaviour is dealt with in England and Wales. It is correct as at the date of research (2009-2010).

2. The Annex covers, in alphabetical order:

  • Asylum and immigration tribunal, UK
  • Canada, custody reduction
  • Drug courts, England
  • Family court, England and Wales
  • France, inquisitorial court
  • Germany, age flexibility
  • Guernsey, Child Youth and Community Tribunal
  • Mental health tribunal, England
  • New Zealand family group conferencing
  • Northern Ireland youth conferencing
  • North Liverpool Community Justice Centre
  • Referral orders, England and Wales
  • South Africa, multi-level gatekeeping.
  • Scotland, Children’s Hearings
  • US Red Hook Community Justice Center
  • US drug courts

MODEL

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ASYLUM AND IMMIGRATION TRIBUNAL -UK

BACKGROUND /
  • The Asylum and Immigration Tribunal (“AIT”) is to be transferred into the unified Tribunal Service as of 15 February 2010.
  • It was not transferred initially in 2008 given that a new system had only be instigated; the AIT replaced the Immigration Appellate Authority and the new system has been in force from April 2005.
  • A specialist Immigration and Asylum Chamber is to be established under the First Tier and appeals from this will be heard by the Upper Tribunal.
  • The new chamber will hear appeals of decisions from the United Kingdom Border Agency (“UKBA”).
  • The Asylum and Immigration (Procedure) and (Fast Track) Rules 2005 will be modified in order to become the rules of procedure for the new chamber.

CATEGORISATION /
  • The tribunal is an appellate court for decisions made by the UKBA. Eligibility to appeal is prescribed by statute.
  • Hearings are presided over by one or more immigration judges who may be accompanied by a combination of legal and non-legal members of the tribunal.
  • Special rules apply regarding procedure if the initial appeal is heard by a panel of 3 immigration judges.

GATEWAYS /
  • Eligibility to appeal must be fulfilled given there is no automatic right to appeal to the tribunal.
  • Only persons subject to an ‘immigration decision’ may appeal a decision made by the UKBA.

SIDEWAYSREFERRALS /
  • None.

CLIENTELE /
  • There is no automatic right of appeal to the tribunal.
  • Only persons subject to an ‘immigration decision’ may appeal decisions of the UKBA. This is defined by s. 82(2) of the Nationality, Immigration and Asylum Act 2002 (“NIAA”).
  • A number of further exceptions exist; (not exhaustive)
(i) case certified under s. 96 NIAA;
(ii) case certified on grounds of national security under s. 97 NIAA;
  • Appeals may be brought by persons in detention or otherwise and present in the UK or otherwise.

INVESTIGATION /
  • All hearings will have a case management review hearing (“CMR”). Such is considered a hearing in its own right as the tribunal has the power to dispose of proceedings under rule 15 or 19 of the procedure rules.
  • The general rule is that appeals must be heard by way of a hearing under rule 15, however, there are some key exceptions to this: (not exhaustive)
(i)the appeal lapses, is abandoned or withdrawn;
(ii)the parties consent to determination without hearing;
(iii)the appellant is outside the UK and has no representative;
(iv)a party has failed to comply with a provision or provide a satisfactory explanation and the tribunal is satisfied it can be determined without a hearing;
(v)the tribunal considers the appeal can be justly heard without recourse to a hearing. In this last exception the tribunal must give the parties notice to allow for their representations if required.
  • Tribunal hearings will be heard in public under rule 54 of the procedure rules. This does not limit the power of the tribunal to exclude any persons in the interests of justice. One exception to this is a hearing under s.108 NIAA in which the allegation will be in relation to forged documents.
  • In respect of children’s cases it should be considered whether the hearing should be heard in private. In this situation an order should be made to exclude all persons from the hearing.
  • Listing will take into consideration that children’s cases are to be heard at the earliest available date and first on the list (guidance note 8).
  • The appellate authority must proceed in the absence of a party provided that notice of the hearing has been given and no satisfactory explanation has been provided. This power is under rule 19 of the procedure rules.
  • Applicants are entitled to legal representation at all stages of the process.
  • The Community Legal Service (Financial) (Amendment) Regulations 2010 amend the Community Legal Service (Financial) Regulations2000 to apply financial eligibility criteria for applicants under the new Immigration and Asylum Chamber.
  • A child friendly atmosphere should be created where relevant. This may include moving to chambers or a round- table setting. Efforts should be made to introduce the personnel in the room providing explanation of their role and proceedings*.
  • The tribunal will generally hear both oral and documentary evidence even if it would not be admissible in a court of law under rule 51. Consideration must be had in relation to the age, maturity, capacity and cultural differences of child witnesses in relation to whether they should be permitted to give evidence*. Where permitted, questioning must be sensitive to the circumstances of the child and use simple language*.
  • Furthermore, the tribunal may give directions as to the conduct of proceedings (rule 45) and has the power to issue witness summonses (rule 50).
  • Where an appeal has been dismissed, the applicant may apply to the tribunal for review of the decision on the grounds that it erred in law. This must be done within 5 days of receipt of the determination (28 days for those outside the UK).
  • If this is also dismissed, leave is required from the tribunal to appeal to the Upper Tribunal. If leave is not granted, the appellant may apply directly to the Upper Tribunal for permission to appeal under s. 21 Tribunal Procedure (Upper Tribunal) Rules 2008.
  • From the Upper Tribunal the route of appeal is to the Court of Appeal.
  • It is important to note that where an appeal is heard by a panel of three immigration judges, the appeal route is directly to the Court of Appeal by virtue of s. 103E NIAA.
*taken from guidance note 8 – dated 2004 but seemingly still applicable.
RESPONSES /
  • In children’s cases involvement from outside agencies in the form of expert witnesses should be considered, for example, in relation to the health and development of the child and capacity to give evidence at the hearing (guidance note 8).
  • A statutory duty now exists under s. 55 of the Borders, Citizenship and Immigration Act 2009 whereby all employees of the UKBA and those acting under their auspices must safeguard and promote the welfare of children. According to UKBA guidance this extends to conduct in the course of the appeals procedure.

GROUPS/GANGS /
  • Special provisions allowing familial appeals to be heard together under rule 20 of the Procedure Rules.

COMPREHENSION /
  • Applicants are entitled to a translator when giving evidence and in any other circumstances the tribunal deems necessary under rule 49A. This will include at the case management stage where an applicant’s representative is not in attendance.

TIME /
  • The tribunal will follow the same time limits as the AIT.
  • Non- detained appellants must submit their appeal forms within 10 business days of notice of decision. Late submissions must be accompanied by a statement explaining reasons for delay will be considered by a tribunal judge. An extension of time to appeal may be allowed if the judge is satisfied that it would be unjust not to do so.
  • Detained appellants have 5 business days to submit their appeal.
  • Appellants under the fast- track procedures must comply with a 2 day time limit. Late submissions are dealt with in a slightly different way. Late applications will still be listed for hearing and will consider as a preliminary point whether to extend time to lodge the appeal. This process allows oral representations to be made which is not available under the other categories.

CONTROL OVER SERVICES /
  • Outside agency involvement, other than the UKBA, is usually only in the form of expert witnesses or translation services.

MONITORING AND REACTING /
  • The delivery of the service of the tribunal is heavily prescribed by statute. As such errors in law can provide the basis of grounds for appeal. As identified above appeals can be taken to the Upper Tribunal and from there to the Court of Appeal.

CASE NUMBERS AND COSTS /
  • No information as yet, system due to come into force on 15 February 2010.

OUTCOMES /
  • Not applicable.

RECORDS /
  • Not applicable.

POSITIVES/
NEGATIVES /
  • Unreported decisions of the AIT are not searchable for use and citation by practitioners and no transparency as to the criteria used for determining those that are reported (Immigration Law Practitioners’ Association).
  • Time limits in respect of Upper Tribunal are unfair – unreasonable to provide one day’s notice of hearing underr.36(2)(aa) – the fact of detention should not override opportunity to have reasonable time to prepare and present case
  • In relation to children, new procedural rules should be enforced to include immediate and long term best interests, non- discrimination and effective participation. Guidance should taken into account the age, maturity and experiences of children in line with international obligations.
  • No specific power of the tribunal to appoint a litigation friend for children or vulnerable adults.

CHANGES /
  • UK reservation to the UNCRC in relation to immigration and citizenship was lifted in 2008.

CONTEXT /
  • Often the content of applications for asylum is based on humanitarian concerns. The UKBA produces operational guidance notes for country- specific claims which outline the general, political and human rights situation of the country. These are updated on an ad hoc basis and will shape the context of the claims before the UKBA and consequently the tribunal.

REFERENCES / Legislation:
Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005
Asylum and Immigration (Fast Track Time Limits) Order 2005
Asylum and Immigration Tribunal (Procedure) Rules 2005
Tribunal Procedure (Upper Tribunal) Rules 2008
Asylum and Immigration Tribunal Practice Directions, Consolidated Version (2007)

Asylum and Immigration Tribunals, Guidance Note 8: Unaccompanied Children (2004)

Immigration Law Practitioners Association, Response to Practice Directions (2009)

Royal College of Paediatrics and Child Health et al., Intercollegiate briefing paper: Significant harm: the effects of administrative detention on the health of children, young people and their families (2009) London: Royal College of Paediatrics and Child Health

CANADA - CUSTODY REDUCTION

The overview paper on Canada prepared for the Independent Commission on Youth Crime and Anti-social Behaviour (Bala, Carrington and Roberts, below) contains useful information about the Canadian strategy leading to reduced custody without increasing crime. It is clear from this that the strategy was not based on procedural changes relevant to the work of our report, albeit that there is some material of interest on diversion and courts when considering custody.

Summary

  • The 2003 Youth Criminal Justice Act reforms were designed to meet with public concern about a small number of highly publicised violent crimes and professional, youth organisation and academic concern about large numbers of less serious adolescent offenders going through the courts and into custody.
  • The main planks of the reforms were more structured diversion (see below), reformed statutory YJS purposes and principles, restrictions on pre-trial detention (which have proved ineffective), tighter sentencing purposes and principles, specific statutory restrictions on the use of custody, new community sentences including e.g. an ISSP equivalent and a (little used and legally challenged) power to sentence the most serious young offenders as adults.
  • The authors do not discuss gate-keeping or trial processes, and it is clear that the system remains a classical court-based ‘justice model’ system broadly similar to that in England and Wales - albeit with substantial pre-court diversion reaching 55% of cases by 2007.
  • The reforms substantially reduced custody use, though from a very high to still-high level – 27% of sentenced cases in 2002-03 down to 17% in 2006-07 (526 down to 219 per 100,000 youth population).The authors attribute this to the stronger sentencing principles and restrictions, an extensive professional education and support programme before implementation and the support of both the police and probation services for diversionary principles plus(for the police) the practical benefits of greater speed and simplicity in dealing with cases.

Detail on diversion

The article summarises without much procedural detail the main elements of the reformed diversion system:

  • ‘Extrajudicial sanctions’. Non-court community-based programmes to which police and crown prosecutors can refer apprehended young people instead of charging them: e.g. Family Group Conferencing, restitution, community service, counselling. Youths must have accepted responsibility for their acts and receive no criminal record but if they reoffend their participation or otherwise in diversion may be a factor in how they are subsequently dealt with.
  • ‘Extrajudicial measures’. Options as under extrajudicial sanctions plus police oral warnings, written cautions or ‘take no further measures’ but discussion of the situation with the young person and perhaps their parents. The Act (s.6) says police ‘shall’ consider taking such measures rather than initiating judicial proceedings and (s.4(a)) contains general statutory recognition that they are often the most appropriate and effective way to address youth crime. In some areas the police give young people just the one diversion chance, in others two or three before taking them to court.
  • The role of crown prosecutors is not detailed separately. Judges play a limited role in diversion: they can informally signal that a case should be diverted (no detail given) or impose a reprimand in case which they think ought to have been diverted.

Point on trials

There is no general discussion of trial processes but one passing comment of interest to us:

  • Under s41, prior to imposing custody a court must consider a PSR plus any sentencing proposal made by the young person or their counsel and also the judge mayhimself/herself convene a conference or refer a case to a community-based conference before imposing sentence. No detail is given except that the conference might facilitate receiving advice from family or community members or allow for a victim-offender meeting before sentencing.

Reference

Youth Justice Reform in Canada: Reducing use of Courts and Custody Without Increasing Youth Crime. Nicholas Bala, Peter Carrington and Julian V. Roberts. April 11, 2009

MODEL

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DRUG COURTS - ENGLAND

BACKGROUND /
  • The purpose of the Dedicated Drug Court is to reduce reoffending by better understanding the motivations of drug misusing offenders, increasing their participation in drug treatment programmes and increasing the levels of sentence compliance.
  • A pilot scheme was launched in 2005 based at two adult magistrates’ courts, Leeds and West London.
  • These were chosen on the basis of being areas of high crime and potentially drug-related crime, having programmes for drug testing and treatment and having provisions for Restrictions on Bail* in place. Leeds had already developed an almost identical model to this, reviewing offenders throughout their sanctions since 2001.
* provides a restriction on bail in the case of adult defendants testing positive for a class A drug in connection with the offence. Offenders not agreeing to assessment of their dependency or follow up treatment following this may be denied bail.
CATEGORISATION /
  • The Dedicated Drug Court (DDC) is a specialist forum for dealing with criminal matters relating to drug-misusing offenders.
  • Offenders are referred to the DDC for sentencing and management of the drug rehabilitation requirement (DRR) sanction until completion.
  • A DRR is the successor of the Drug Treatment and Testing Order (DTTO), replaced by the Criminal Justice Act 2003. It is one of the requirements which can form part of a Community Order (CO) or is available as part of a suspended sentence. It requires that an offender undergo a treatment programme with regular drug testing and appearance for reviews by the DDC. They can be applied with a category of low, medium or high intensity for a period of between 6 months and 3 years.
  • Currently a pilot scheme across the UK, the DDC framework is based upon five principles:
(1)Specialism: the court deals exclusively with drug-misusing offenders.
(2)Continuity: the court aims to provide continuity of judiciary throughout.
(3)Training: judges and court staff receive additional training on working with drug-misusing offenders and the DDC model.
(4)Processes: improved processes designed to ensure all relevant information is before the court.
(5)Partnership: ensuring an effective multi- disciplinary approach between criminal justice agencies and professionals.
GATEWAYS /
  • The allocation of offenders to the DDC has differed slightly between the two pilot schemes:
(1) Leeds:
(i) After conviction the magistrates court will adjourn for sentence in the DDC;
(ii) A pre-sentence report (PSR) will be prepared on the suitability of a DRR disposal;
(iii) The DDC will sentence and manage the offender.
(2)West London:
(i) After conviction the magistrate will assess the requirement for a sanction to address drug use;
(ii) The court will adjourn for a fast- track PSR;
(iii) After consideration of the PSR the court may adjourn if a DRR assessment necessary;
(iv) If the offender is deemed suitable for a DRR, the court will adjourn to the DDC for sentencing;