OPINION: "CAN JURORS IN THE INTERNET AGE AVOID BEING IN CONTEMPT OF COURT?"

The Sun and the Daily Mirror have been found guilty of contempt of court over their coverage of the arrest of Chris Jefferies, Yeates’ landlord, who was later released without charge (see our post here). Joanne Fraill contacted the defendant in the case on which she was a juror via Facebook. She was later tried and found guilty of contempt of court.

Proceedings brought against newspapers under the Contempt of Court Act 1981 are fairly rare, although courts are increasingly battling the problem of jurors conducting online research.

There have been two other landmark contempt cases this year involving juries and the internet. But were the messages that these cases sent out entirely consistent? In the Facebook juror case, Joanne Fraill was jailed for eight months (A-G v Fraill [2011] EWCA Crim 1570).

The court was keen to emphasise that prison sentences were required in order to ensure that “this troublesome case” remained the exception. The court stressed that

“the problem is not therefore the internet: the potential problems arise from the activities of jurors who disregard the long established principles which underpin the right of every citizen to a fair trial.” [28]

It explained that internet research by jurors does not constitute evidence in the case (and therefore verdicts cannot be based on it) and may be inaccurate or incomplete.

During the trial from which the contempt case emerged, the judge had specifically directed Fraill and the other jurors “not to go on the net during this trial to explore any issues which may arise“. Jurors are also prohibited (for life) from revealing their deliberations to anyone.

And so it followed that flouting those fundamental prohibitions, which undermine the sanctity of our jury system, would inevitably result in serious consequences. The overall message was clear: the problem does not lie with the internet (including the availability of almost any information on it and its considerable power to locate another person) but rather with errant jurors and defendants.

But that conclusion is hard to square with the court’s views three months earlier in the online contempt case concerning the Sun and the Daily Mail. Both newspapers published pictures online of a defendant on trial for murder posing with a gun, the images remaining on the newspapers’ websites for some hours. The trial was not aborted, but nevertheless the court found that publication had caused a substantial risk of prejudice. Even though the papers had not intended to cause any prejudice, they were found to have committed a type of contempt of court.

The rationale for such strict contempt laws is that they compensate for the fact that in Britain, unlike the United States, we have very limited jury vetting and so prejudicial material must be especially carefully controlled before and during the trial. But in reaching its decision, the court emphasised the “viral nature” of material on the internet and the near-impossibility of controlling its dissemination. It also decided that jurors might have accessed the offending image without breaching the trial judge’s directions: he had merely said “do not consult [the] internet about this case” not “do not go online at all” and the image was accessible on the newspapers’ websites. The clear message was that jurors can be trusted to obey judges’ directions – which seems hard to square with the Facebook case.

It seems that no-one can agree on the issue. Lord Macdonald QC, the former director of public prosecutions, considers that policing the accuracy of information on the internet is “an unmanageable task“. He believes that it should not invalidate a trial if jurors are found to have conducted online research while a case is in progress. Indeed, a report for the Ministry of Justice last February found that 12% of jurors in high-profile cases admitted doing precisely that, and a further 26% said they had come across media reports online during the trial.

Nevertheless the attorney general, Dominic Grieve, takes the view that “of course a jury can be trusted not to research a case on the internet as directed.”

No doubt jurors, defendants and newspapers will be more wary of breaching the rules in the light of these contempt cases. But the scale of the problem ought to be recognised and the strong messages from the court need to be entirely consistent.

By: Alex Balin QC

Alex Bailin QC is a barrister at Matrix Chambers

FREEDOM OF EXPRESSION: IS FILMING THE POLICE IN PUBLIC A FUNDAMENTAL RIGHT?

As a number of recent cases have made clear, the filming of policing activity in public places is a vital method of holding police to account. But there have been continuing tensions between the police and photographers over filming police activity. In January 2010 there was a protest in Trafalgar Square by photographers against the use of terrorism laws to stop and search photographers. A campaign called “I’m a photographer, not a terrorist” was launched to protect the rights of those taking photographs in public places.

However, although Guidance issued by, for example, the Metropolitan Police has made it clear that

"Members of the public and the media do not need a permit to film or photograph in public places and police have no power to stop them filming or photographing incidents or police personnel".

This often does not appear to have come to the attention of individual police officers (or security guards).

There have been some successful complaints about the use of police powers to prevent photography (see, for example, the complaint by Jess Hurd) but there is no English case law on the relationship between the right to take photographs of the police and freedom of expression. Advances in technology has meant that the legal issues have arisen in a number of different jurisdictions (see "Is filming the police a felony or a right?").

In this context, a recent decision from the United States is of considerable interest. In the case of Glik v Cunniffe (26 August 2011) the US Court of Appeals for the First Circuit held that there is a First Amendment right to record police activity in public. Mr Glik was arrested on 1 October 2007, after openly using his cell phone to record three police officers arresting a suspect on Boston Common. He was charged with criminal violation of the Massachusetts wiretap act, aiding the escape of a prisoner and disturbing the peace. The charges were dismissed but, with the assistance of ACLU, Mr Glik brought a claim alleging, inter alia, that the police officers violated his First Amendment right to record police activity in public. The Judge refused to dismiss the claim on the basis of qualified immunity and the Court of Appeals dismissed the police appeal holding that

"Glik was exercising clearly-established First Amendment rights in filiming the officers in a public space, and that his clearly-established Fourth Amendment rights were violated by his arrest without probable cause."

It was noted that

"Gathering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in protecting and promoting “the free discussion of governmental affairs".

The Court’s conclusion will resonate with photography campaigners in this country

"a citizen’s right to film government officials, including law enforcement officers, in the discharge of their duties in a public space is a basic, vital, and well-established liberty safeguarded by the First Amendment."

The Citizen Media Law Project and the Thomas Jefferson Center have posts about the case.

Although First Amendment jurisprudence is not always consistent with the approach of the English or European Courts the principles set out in this case are ones which appear to be consistent with the Convention approach. The importance of the right to gather information for the purposes of promoting public debate has been repeatedly recognised by the Strasbourg Court and strongly suggests that there is a fundamental right to take photographs of the activities of public officials, particularly, police officers.

By: Hugh Tomlinson QC

THE SOUND OF SILENCE - HUMAN RIGHTS, THE RULE OF LAW, AND THE 'RIOT'

In the second week of August, Britain’s political classes were gripped by panic as a number of English cities experienced ‘rioting’ and looting on a scale unknown in modern times. The situation was eventually brought under control, with the Metropolitan police flooding the streets of London with 16,000 officers.

No one can question the damage or devastation that was done in the three or four days of destruction. Nor can anyone excuse some of the dreadful criminal acts that took place, some of which were captured on camera for the world to see. And while four families were left to mourn the deaths of sons and brothers, countless others had businesses, homes and possessions destroyed.

The second week of August was not a good one. But if this was true of the disorder and looting, it was also true of the ‘clean-up’. Now in the grip of a hysterical media, the country responded in a wholly disproportionate manner, beginning with the mass arrests and the processing of 796 of the 1,600 arrested through the courts in a period of a few days, the courts sitting all night for the purpose.

Yet it was not until the end of the week that a few distant voices were beginning to ask whether rushed justice is not summary justice; about ‘grand-standing’ prosecutors and district judges celebrated in the tabloid press for their ‘toughness’; and about exemplary sentences being imposed on the stupid as well as the venal, an opportunist student being given six months for stealing a case of water worth £3.50.

It was as if a new mob had taken over, led by the agitators in Parliament, specially recalled from its summer recess to discuss the disorder. Tanned MPs brought back from exotic locations – in some cases it is said at public expense – stood in solidarity, to condemn the violent and the looter, and to demand tougher laws and a more authoritarian response from the government.

They were not disappointed, the Prime Minister announcing (i) powers to allow the police to remove the face-coverings of ‘rioters’ trying to conceal their identities; (ii) plans to close down social network sites during periods of unrest, these sites having played a part in the ‘organisation’ of the violence; and (iii) that the government was considering whether a ‘wider power of curfew’ is necessary.

For those seeking an even more ‘robust’ response, Mr Cameron announced that rubber bullets were available for the police, while water cannon was now to be placed on 24 hour stand-by, raising the spectre of ‘rioters’ (and presumably protestors) being hosed down on the streets of London for the first time ever. All despite advice about the impracticability of equipment of this kind for dealing with fast moving events.

Yet this was by no means the end of it, with one local authority announcing that it had moved to evict a single-mother and her young daughter from their social housing. This is because her son had been charged with violent disorder for his part in the lawlessness. Not even waiting for the 18 year old to be found guilty of the offences charged, English justice was beginning to look like the justice of the lynch-mob.

Wandsworth council was nevertheless applauded by a vengeful press, agents provocateur in the campaign to have the families of ‘rioters’ and looters evicted, as well as now to have their social welfare benefits stopped. But Wandsworth was not alone, the Daily Mail reporting that Manchester City Council was preparing to evict ‘the family of a 12-year-old boy photographed stealing a £7.49 bottle of wine from a Sainsbury’s store’.

In a chilling turn of events, the wild-west posse was demanding not only that the adolescent ‘rioters’ be punished, but that they and their families be rendered homeless and destitute. Once evicted, the families would have no right to be re-housed, being ‘intentionally homeless’ in the new Kafka-esque world to which their ‘rioting’ children unwittingly had led them..

It is when human rights claims are most necessary that they appear most invisible. Times like this. No one had the courage in that first week to raise such claims, apart from the Wandsworth tenant served with notice of eviction, noting that her ‘human rights are being taken for granted’. No one is listening, except to sneer. The talk now is of responsibilities not rights. Rough justice has displaced legality.

So when the Prime Minister addressed the recalled House of Commons, the term ‘human rights’ was mentioned only six times in the course of a long session, once by Mr Cameron himself to assure the House that the government would not be deflected by ‘phoney’ human rights concerns. The only other reference was by a hyper-ventilating Tory back-bencher demanding the repeal of the Human Rights Act.

By the end of the week, one of Britain’s leading civil liberties NGOs had made two web-postings, one to applaud the ‘measured and proportionate’ response of police and government’; the second to provide re-assurance that Liberty is ‘a critical friend to the police’, opining – in the face of a dispute between the police and the government about the response to the disorder – that we must ‘give credit where it is due’.

So not from our political leaders the defiant and dignified re-affirmation of core values in times of adversity. Indeed, the only note of dignity was to be heard from Mr Tariq Jahan, the father of Haroon Jahan, murdered in Birmingham while protecting shops from being attacked. In a widely applauded interview of great humility and power, Mr Jahan called for calm and repudiated the demand for revenge.

In as compelling and noble a commitment to the rule of law as one is ever likely to hear, Mr Jahan was prepared to leave matters to the ordinary forces of the law. ‘What goes around, comes around’ he was heard to say, in words directed to his son’s killers. The forces of law and order had much to be grateful for this disarming intervention. But not everyone was prepared to follow Mr Jahan’s example.

This is what happens when the personnel of the State lose their inhibitions, and when in a parliamentary democracy all branches of government join forces and hunt with the mob. It is what happens when legislature, executive and judiciary behave in a way that is as great an affront to civilised values as the conduct of the mainly unemployed young men they so rightly condemned. It is an ugly sight.

By: Keith Ewing

Keith Ewing is Professor of Public Law at King’s College London

EXPLAINING OUR LAW AND LEGAL SYSTEM ... No.7 ... YOUTH JUSTICE ... PART 2 (Modern System)

The key features of the youth justice system:

For youth justice purposes, a child is aged 10 to 13 and a young person is aged 14 to 17. Persons under age 10 cannot, in law, be guilty of a criminal offence though local authorities are empowered to institute "care proceedings" under the Children Act 1989.

Part 1 of this post noted that the principal objective of the youth justice system is prevention of offending by children and young persons. Further, every court in dealing with a child or young person shall have regard to the welfare of the child or young person.

The Criminal Justice and Immigration Act 2008 s.9 was enacted to alter the law relating to the purposes of sentencing for offenders aged 10 to 17. This has not yet been implemented.

The principal objective appears to be somewhat at odds with the U.N. Convention on the Rights of the Child which states in Art 3:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

There is a Youth Justice Board (YJB) and also local authorities operate Youth Offending Teams (YOT).

Youth Courts which are based in Magistrates' Courts. Exceptionally, children or young persons can be tried in the Crown Court.

The Youth Justice Board (YJB):

The YJB was created by the Crime and Disorder Act 1998 s.41 and it oversees the youth justice system in England and Wales. The YJB is an executive non-departmental public body and its board members are appointed by the Secretary of State for Justice. However, it operates at arms length from the government and has an extensive list of functions set out in section 41(5). A fuller description is in "Introduction to the Youth Justice Board."

Youth Offending Teams (YOT):

Local authorities are required to establish Youth Offending Teams - Crime and Disorder Act 1998 s.39. The teams are multi-disciplinary bodies, comprising staff from the Police, Probation Service, Social Services, Health and Education services. This enables them to more comprehensively respond to the needs of children and young people who have offended and those who are at risk of doing so. The YOT will identify the needs of each young person, the specific problems leading to offending and the risk that he or she poses to others. The YOT can then identify suitable programmes to address the needs of the young person with a view to preventing offending or re-offending. The YOT has a key role in providing information about offenders for sentencing purposes. YOTs supervise young people who have offended are serving orders in the community. The Youth Justice Board sets performance indicators for YOTs. The website of the YOT in Tameside, Greater Manchester gives a good indication of the range of work done generally by YOTs over the country. See also Making it count in court which sets out how YOTs operate.

Youth Offender Panels are set up by the YOT to deal with offenders referred to them. The Panels have statutory authority - Powers of Criminal Courts (Sentencing) Act 2000 s.21. So-called "Referral Orders" are covered by section 16 of this Act. See also BBC - Adam's Case. Local authorities frequently seek suitable members of the public to become Youth Offender Panel members - see, e.g., Tameside.

Youth Courts:

Each Local Justice Area in England and Wales is required to establish a Youth Panel comprising those magistrates who are authorised to sit in the Youth Court - see Youth Court (Constitution of Committees and Right to Preside) Rules 2007.

The Youth Court is part of the Magistrates' Court.

The judiciary in the Youth Court will be either a bench of three Justices of the Peace (JPs) or a professional judge such as a District Judge (Magistrates' Courts). Where a bench sits it must normally comprise at least one man and one woman. JPs have to be trained and authorised as provided by the Courts Act 2003 s.50. JPs are advised on law and procedure by a legally qualified adviser. There is provision for other other ranks of judge to sit in the Youth Court - see Children and Young Persons Act 1933 s.45 as affected by Courts Act 2004 s.66.

Trial of most criminal cases involving children or young persons will be in a Youth Court. The court may in any case require the parent(s) or guardian to attend and must generally do so if the child or young person is under the age of 16 - Children and Young Persons Act 1933 s.34A. This point was raised recently by a District Judge and it is a worrying feature that parents of older young persons often do not attend. During a Youth Court sitting, only certain persons may be present - C&YPA 1933 s.47. Also, reporting restrictions apply - C&YPA 1933 s.49 but the court has power to order that restrictions will not apply. In the recent "August disorder" cases this led to the Crown Prosecution Service (CPS) issuing guidance to prosecutors about applying for removal of restrictions once a conviction was reached. Notwithstanding this guidance, it should be very much the exception that children and young persons are named publicly. International law and practice emphasises the importance of protecting the privacy of children and young persons involved in legal proceedings.

Secure accommodation:

Children and Young Persons are not imprisoned but, in certain circumstances, they can be held in custody in one of three forms of accommodation - sometimes referred to as "the secure estate."

The three forms are: Young Offender Institution (YOI); Secure Training Centres (STC) and Secure Children's Homes. The YJB commissions the places in all three. After sentence (or remand in custody) the YJB Placement Team decides in which part of the secure estate the child or young person will be held. The decision is based on an assessment undertaken by the YOT and also on factors such as the availability of places , age, gender, maturity and the risks associated with the individual. The aim is to accommodate the individual as close as possible to home so that contact with positive family relationships can be maintained. England and Wales makes greater use of custody for this age group than many other democratic countries. The YJB has the view that custody should be a last resort - see the YJB's publication relating to Custody.

Out of court handling of young offenders:

Offences committed by children or young persons are not always dealt with via the Youth Court since it can be preferable to keep cases out of the court system provided that this is commensurate with the gravity of the case. Court proceedings can affect the young person for many years afterwards: reducing chances of employment and preventing them fulfilling their potential. Out of court methods include penalty notices for disorder, reprimands, final warnings, and youth conditional cautions.

Penalty Notices for Disorder are available for young people aged 16 and 17. They offer an additional method of dealing with low-level offending and anti-social behaviour. There must be sufficient evidence to support a successful prosecution. When a notice is ussed, the Police inform the YOT.

Reprimands and final warnings replaced cautions for young people - Crime and Disorder Act 1998 ss. 65 and 66. They cannot be given unless the offence is admitted. They are not court orders but can be taken into account by the court when looking at antecedent history. A reprimand will be given for many first time offenders who have committed less serious offences. A final warning is given to those who have received a reprimand before or in cases where the offence is considered to be too serious for a repirmand. When a final warning is given, the YOT is informed and the young person is then assessed with a view to work being done to prevent further offending. No further final warning may be given unless it is at least 2 years since the earlier warning and the offence is not so serious as to merit charge.

Youth conditional cautions became available with the Criminal Justice and Immigration Act 2008 s.48. but are currently only available in certain areas of the country. They are issued in accordance with CPS Guidance and a statutory code. Currently, these cautions are available for 16 and 17 year olds though this could be extended to lower ages. Conditions attached to such a caution may include provisions to support rehabilitation, effect reparation or punishment and can include a fine and/or an attendance centre requirement. YOTs have a key role in assessing cases, recommending, supervising and delivering Youth Conditional Caution conditions, subject to approavl and oversight by the CPS.

Sentences available to the youth court:

The court has a considerable array of powers. Absolute and conditional discharges; referral orders; fines / compensation orders; youth rehabilitation orders; Detention and Training Orders. Sentencing of young offenders is a difficult task involving balancing the seriousness of the offence and offending history against the welfare needs of young offenders. The availability of some orders depends on the age of the offender. The court will bear in mind the principal aim of the youth justice system as well as the welfare principle.

The whole range of sentences and disposals may be seen on the Justice website - Justice - Orders and Disposals

Sentencing Guidelines - Over-arching principles: Sentencing Youths

Trial in the Crown Court - grave offences etc:

The general aim of the system is to avoid Crown Court trial but, in some instances the law requires it in relation to very serious offending. The legal provisions are complex and there is considerable case law. The CPS website has a summary of the various provisions - see Youth Offenders.

The more usual type of case committed for trial in the Crown Court is that of so-called grave offences - that is, an offence covered by the Powers of Criminal Courts (Sentencing) Act 2000 s.91. Another type of case is where the child or young person is charged jointly with an adult and the youth court considers it necessary in the interests of justice to commit them both to the Crown Court for trial - Magistrates Courts Act 1980 s.24. Further possibilties of Crown Court trial arise where questions of "dangerousness" arise - see NACRO 2008.

Trial of children and young persons in the Crown Court has raised a considerable number of problems and has resulted in criticism of the legal system. Please see Law and Lawyers earlier posts: Youth Court Trial (April 2010); Criminal Liability of Children and their trials (May 2010).

System in Scotland:

Scotland has its own distinctive system of youth justice. A great detail of information can be accessed via - "Youth Justice and offending in Scotland: link to information, policy and research."

Based on a report by Lord Kilbrandon in 1964, Scotland closed its Juvenile Courts in 1968 and introduced Children's Hearings. The Hearing comprises three members of the public who live local to the young people being seen. The Hearing has none of the legal trappings of a court, although the lay members are trained.

Kilbrandon saw the needs of offenders and those requiring care and protection to be the same. The Hearing therefore focuses on the needs of the young person, whose interests are paramount. In keeping with thinking of the time, minimal intervention that avoided stigma was thought to be the most effective response. In the first part of the 21st Century, the system has been undermined by some of the punitive measures introduced in England and Wales by the New Labour government (alongside major investments in prevention and early intervention). It nonetheless remains distinctive and attracts considerable international interest. The Scottish Executive remains committed to the tried and tested system of Children's Hearings and has enacted legislation to give the hearings more support.

System in Northern Ireland:

Northern Ireland also has its own separate system of youth justice and has a Youth Justice Agency. The Northern Ireland Executive currently undertaking a review of the system. An interesting development has been "Youth Conferencing"

Criticisms:

A major criticism of the system in England and Wales must relate to the sheer complexity and breadth of the legislation. Few areas of criminal justice are as impenetrable as statute-upon-statute has introduced reforms but do so by the technique of cutting an pasting into earlier Acts. Also, from time-to-time, additional complexity arises from various government initiatives such as Youth Restorative Disposals (trialled in 2008-9) and the Deter Young Offender Scheme. Further criticism of the low age (10) of criminal responsibility. Scotland increased it to 12 in 2009. See Children and Young People Now - January 2009. In 2008, a report from the United Nations Committee on the Rights of the Child made many recommendations and was critical of the degree to which custody was used - see NACRO article.

Further critical material may be seen at:

Centre for Social Justice: Breakthrough Britain: Youth Justice

Standing Committee for Youth Justice - a reform body
Centre for Crime and Justice Studies: 10 years of Labour's youth justice reforms: an independent audit
Equality and Human Rights Commission Research paper 50 - "Differential treatment in the youth justice system"
Law and Lawyers - Secure Training Centres - use of restraint

By: Obiter J (Law and Lawyers)

EXPLAINING OUR LAW AND LEGAL SYSTEM ... No.7 ... YOUTH JUSTICE ... PART 1 (Background)

Previous posts in this series:
No.1 - Legal Personnel
No.2 - Courts of Law and Tribunals
No.3 - The Judges
No.4 - Juries
No.5 - Magistrates
No.6 – Sources of Law

For the purposes of youth justice, a "child" is under age 14. A "young person" is aged 14 to 17 inclusive. This post, on the Youth Justice System, will be in two parts.

The poster (pictured above left) was produced in 2009 when Sheffield Youth Court held an "open day." It encapsulates the development of youth justice from the merciless severity of pre-Victorian England to the modern system which has the principal aim of preventing offending by children and young persons (Crime and Disorder Act 1998 s.37). Furthermore, since the Children and Young Persons Act 1933 s44, every court in dealing with a child or young person shall have regard to the welfare of the child or young person.

A sketch of the history:

"Juvenile Courts" - (as they were then known) - did not come until the Children Act 1908. The Act also abolished the death penalty for children under age 16 and made child neglect and abuse a criminal offence. Before this Act, children were tried as adults and frequently given punitive sentences. The Act created a court which not only addressed criminal matters but also covered care proceedings. Here was a recognition that criminality in the young can be linked to the "care" given to the child in the home environment. Interestingly, the Children Act 1989 separated the functions of juvenile courts so that welfare-related matters are now dealt with as "family proceedings" and crime is handled by the juvenile courts. The Criminal Justice Act 1991 s.70 renamed the juvenile courts as Youth Courts.

The Children and Young Persons Act 1933 created the "welfare principle" in youth court proceedings (s.44) and raised the age of criminal responsibility to 8 - (1933 Act s.50). This age was raised to 10 years by the Children and Young Persons Act 1963 s.16. This remains a controversial issue - see earlier Law and Lawyers post "Criminal Liability of Children and their trials" - 26th May 2010. A White Paper in 1965 - ("The Child, the family and the Young Offender") - proposed raising the age to 16. The Children and Young Persons Act 1969 contained provision to make it 14 but, following a change of government from Labour to Conservative, this was never implemented.

One matter which was abolished by the Crime and Disorder Act 1998 s.34 was the "rebuttable presumption of law" known to lawyers as "doli incapax" - that is, that a person under age 14 was presumed to be incapable of committing a crime unless it could be shown that he knew that he was doing something that was wrong. The matter was considered by the House of Lords in R v JTB [2009] UKHL 20 where it was held that section 34 had abolished not only the presumption of doli incapax but also any such defence. The existence of the presumption was attacked as far back as 1954 by Professor Glanville Williams - Criminal Responsibility of Children [1954] Crim LR 493. Williams wrote -

" ... at the present day the 'knowledge of wrong test' stands in the way not of punishment, but of educational treatment. It saves the child not from prison, transportation, or the gallows, but from the probation officer, the foster-parent, or the approved school. The paradoxical result is that, the more warped the child's moral standards, the safer he is from the correctional treatment of the criminal law."

Over the years, the methods of dealing with young offenders have undergone numerous reforms - too many to consider in detail here. For example, in 1982, "Borstals" were replaced with youth custody and detention centres. In 1988, Young Offenders Institutions came into being. It appears that reaction to the murder of James Bulger sparked a shift to a more punitive approach in government policy irrespective of the political party in power. The Criminal Justice and Public Order Act 1994 introduced Secure Training Centres.

The Crime and Disorder Act 1998 created the Youth Justice Board; required local authorities to have "Youth Offending Teams" (YOT) as well as introducing to the law the anti-social behaviour order (ASBO).

In 1989, the United Nations developed the Convention on the Rights of the Child which came into force in international law on 2nd September 1990 and binds the UK in international law. It recognises that children have some very fundamental rights and that they require special care and attention. The Convention has not been incorporated into English law by Parliament enacting legislation but, in appropriate cases, the Convention would be considered by the courts. A useful summary factsheet is available.

In September 2003 the government published "Youth Justice - the next steps" which looked at possible further changes to the Youth Justice System.

In 2008, a Youth Crime Action Plan was introduced which places emphasis on young offenders facing up to their crimes and meeting victims. The Plan claimed to be a truly comprehensive integrated approach to youth crime. The Criminal Justice and Immigration Act 2008 poured on further changes with the Youth Rehabilitation Order and some other significant matters.

After the 2010 general election, the coalition government announced that the Youth Justice Board (YJB) would be abolished - see Bonfire of the Quangos. This appears to remain government policy. However, the government suffered a defeat in the House of Lords over the issue and Kenneth Clarke said that he would reflect on the matter. Abolition of the YJB would necessitate the Ministry of Justice becoming directly responsible for a considerable number of the YJB's present functions.

A useful look at the system as it was in 2008 is "Ten Years of Labour's Youth Justice Reforms: an independent audit" by Centre for Crime and Justice Studies, King's College, London. In February 2011, the House of Commons Public Accounts Committee published - "The Youth Justice System in England and Wales: Reducing Offending by Young Persons" - 21st Report of Session 2010-11. This report comments:

Central government and local authorities spent £800 million in 2009-10 dealing with youth crime, primarily through the Youth Justice Board nationally and Youth Offending Teams locally. Ten per cent was spent on trying to prevent young people becoming offenders. Most of the rest was incurred in dealing with offending behaviour, including over £300 million on custody, which is used to deal with 3% of offences. The National Audit Office has estimated that the total costs to the UK economy of offending by young people could be up to £11 billion a year.

and also ...

"In recent years, the Youth Justice Board has been effective in leading reform within the youth justice system and diverting resources to the offenders most at risk of committing future crimes. Since 2000, the number of young people entering the youth justice system, the number held in custody and the amount of reoffending committed by young people, have all fallen. Youth custody, which is expensive relative to other ways of dealing with young offenders, has fallen during a period when the number of adults in custody has continued to rise. This is a particularly noteworthy achievement, and one in which the Board has played a central part."

Political dogma apart, one may wonder why, in the light of such acknowledged success, the present government seeks to be rid of the Youth Justice Board? (See Public Bodies Report Stage).

The reader may well detect in all of this the fact that the approach to youth justice in England and Wales has been (and perhaps remains) something of a political football. There has been an almost continual accretion of statutory changes with the result that the system is complex and, in several ways, unsatisfactory. Part 2 post will consider the system as it is at present and will also take a brief look at youth justice methods in Scotland and Northern Ireland.

By: Obiter J (Law and Lawyers)

BORAT 'RACISM' CASE REFLECTS BADLY ON EMPLOYMENT TRIBUNALS

Story of Wakefield welder isn't just about racism or political correctness, it's also about small firms' willingness to employ.

Did you notice in the course of a lively week that an employment tribunal in Leeds has decided that the use of the name "Borat" by a Wakefield-based welder to tease a Polish colleague is racist, and may require the award of compensation for hurt feelings. More to the point, do you care?

You won't find the report in today's Guardian, I'm afraid, we're often a bit jittery about this kind of story. Nor will you be surprised to learn that the Daily Mail has no such inhibitions, though it has refrained from editorial or columnar comment so far. So here is a chance to beat them to it.

I must confess right away that I am conflicted on this one. I disliked the Sasha Baron Cohen's hit film of that name quite a lot and changed channels halfway through it. Like a lot of his work, it struck me as exploitative and inherently condescending to the kind of people who weren't lucky enough to go to Cambridge as he did. It's also a one-trick joke.

Nor was Cohen's own justification for the film – he was roundly criticised and Kazakhstan allegedly threatened to sue him – convincing. He told the Rolling Stone magazine – here's the Telegraph's account – that "the joke is on the racists", because only such people could imagine that his gross parody of Kazakhstan – a place where gays wear blue hats, women live in cages and anti-Semitism is rife – could really exist.

Well, if you say so, Sasha, though there are some pretty nasty countries out there. And I doubt if you'd enjoy the joke if a Cambridge-educated Palestinian pulled off a similar stunt travelling through the more red-neck Israeli settlements on the West Bank – or even north-west London.

But an employment tribunal? Compensation? Oh dear. What are we looking at here? Seriously hurt feelings or the opportunity to make a few bob at the expense of a quite possibly blameless employer? Obviously I don't know Mr A Ruda, the Polish engineer who took his case to the tribunal. His motive could be either of the above – or something else I know nothing about. Some motives are very personal, arising from painful past experience.

The tribunal found that Mr Ruda's claim of widespread and persistent abuse had been "less than honest" in some respects and that the welder – though a bit un-PC – who mocked him four weeks in 2007 had been "forthright and honest", as had other witnesses.

"However, it said he was a victim of both race and sex discrimination and said 'the use of the nickname Borat was an act of racial harassment.

"'The application of the nickname Borat violated the claimant's dignity and created for him a degrading, humiliating and defensive working environment,'" according to the Mail's online account.

The tribunal will decide what (if any) compensation is due in September. You could argue that bad publicity in this and similar cases means that more damage has been done to the system's "soft touch" reputation whatever the outcome. But it's more serious than that. Tribunals can award up to £65,000 for unfair dismissal (average £8,000), whereas the average for disability claims is £27,000 and for racist claims almost £32,000.

That's a lot of money for all but the big boys. No wonder small firms complain that complex regulatory law takes much time and effort to master – and that it is often easier to pay up rather than risk fighting a dodgy claim and losing at greater cost.

All this matters when unemployment is high and we look to small firms to be the chief engine of jobs growth. On 1 October, Labour's Agency Workers Regulation, the extension of full employment rights to temporary and agency workers after 12 weeks on the job, comes into force, delayed but not killed off by the coalition.

Predictably, employers complain, but that doesn't make them wrong. We all favour protection of staff against unscrupulous employers or – more usual – those bad at labour management at HR. We all know some firms lay off temporary staff just before they qualify (he period is currently 12 months, not 12 weeks) – even newspapers do it, would you believe.

And some horrendous cases of sexual discrimination pop up, often from the high-flying loadsamoney City. However some turn out to be opportunistic, as in lesser walks of life where, to my repeated astonishment, tribunals make awards to people who have won them half a dozen times before.

But let's be realistic. Making it harder to get rid of someone who proves disappointing or worse, who is disruptive or whose face doesn't fit, may make employers less likely to risk taking someone on. Is it better to have an insecure job or no job at all? In countries such as France, Spain and Italy, where it is harder to hire or fire people, youth unemployment is even worse than here.

So employment tribunals, established by Labour in 1964, matter in a macro-economic sense and have caused headaches for years as their remit has expanded. Here's a piece from the Economist in 2000 which complains that claims have risen by 75% over the past five years – so Tory as well as Labour years. Steve Byers, then employment secretary, promised action to curb frivolous claims. Things have not improved.

Of course, most claims are settled out of court and most which go to the tribunal do not prosper. Here is a lawyer's website which sets out the issues, and tells potential clients that it wins 80% of cases for employers. Here's a piece which attempts a rational analysis of the stats. Unfair dismissal cases rose 56% in 2009-10 over the previous year, but the figure is misleading, it argues.

Back to Borat. Polish jokes – not a British tradition, we do Irish jokes – are (or were?) common in some cultures. German, US and Canadian cultures come to mind. As with mother-in-law jokes ("How do you know she's coming round? When the mice throw themselves into the traps," said Les Dawson), some are funny – even if we try not to laugh – others not.

My subjective feeling is that Ruda should have shrugged his shoulders and got on with his life – and job – there are worse fates than mockery and banter. Not everyone feels that way. There are people who obsess on issues of race, gender or sexuality, as the online community (great word, community) knows. They magnify any slight, real or imagined. Others barely notice. We're all different.

Some readers occasionally think I'm a bit insensitive ( I know, you find it hard to believe), but even I wondered if the greater prominence given in today's Guardian – and other papers – to the death of Elvis's songwriter, Jerry Leiber, compared with that of Motown's Nick Ashford wasn't some sort of hierarchical slight. But when I read the obits, I concluded it was done on merit. And Cliff Richard being so nice about Ashford must have made up for it. Was I right?

And don't forget it's not always the law but the way it is interpreted by middle managers and local tribunals that often causes the problem. That goes for employment tribunals, human rights laws and much else. Only today a list of Britain's 10 daftest health and safety rulings revealed that Butlins prohibited dodgems from hitting each other, school sack races have ben banned, as has kite flying on the beach.

And who issued this jolly list? Why the much abused Health and Safety Executive itself, though you wouldn't know from reading some of the newspapers.

By: Michael White

Michael White is assistant editor and has been writing for the Guardian for more than 30 years, as a reporter, foreign correspondent and columnist. He was political editor from 1990-2006, having previously been the paper's Washington correspondent (1984-88) and parliamentary sketchwriter (1977-84).

MONEY BUSTS THE CONVENIENT MYTH THAT SOCIAL CLASS IS DEAD

Britain likes to pretend it has moved on: but birth determines our destiny and income more now than it did 50 years ago.

Class is a dangerous subject, taboo in mainstream politics. The riots brought out a rash of comment implying that there is one great, respectable middle class and an inexplicable underclass beneath, quite unconnected to what's been happening to wages, incomes and the stretching of social bonds.

Britain is adopting the American political dishonesty of disguising ever-widening income differences by calling nearly everyone "middle class". More than 70% now call themselves "middle" – because that's the way politics has led and because, post trade unionism, people no longer know where they stand on the earnings scale.

The convenient political myth says class is dead. Downton Abbey deference is no more, and look how differences among the young meld into universal estuary and mockney. Classlessness may be modern and hip – yet birth determines destiny more certainly than 50 years ago. Never mind Hyacinth Bucket niceties of napkins over serviettes, class matters more not less than it did, and it needs saying loudly.

I have been making a BBC radio series, The Class Ceiling, which starts this week. Before setting out I asked everyone I came across if they had a story about class: everyone has – either working class people confounded by middle class snobbery, or privileged children embarrassed by being posh. Pretence, shame, pain, guilt, anger – the stories tumble out. Scratch below the surface denial and class is everywhere, as I found in making these programmes.

Nobody in the BritainThinks poll admitted to being "upper", so you have to gauge what people mean from who's talking. Those calling themselves "middle" stretch from euphemisms for the highly privileged – the 7% with children in private schools – all the way to families struggling on the edge to pay a half-mortgage on an ex-council house. Only 24% call themselves working class now. Where once the label was a badge of pride (67% claimed it in 1988) now those self-defining as working class say despondently that it only means "poor" and "low-paid" these days.

Of course people sense how far birth still determines fate: those who make it from humble beginnings are admired because rags to riches stories are so rare. The great majority of those in professions and good jobs were born to them. My father was a writer and journalist: would I be writing this if I hadn't had a head start? The successful are smug if they deny their luck, either in birth or other good fortune, including talents. Too often "effort" is overclaimed and luck ignored by those eagerly justifying their class and income advantage over the very hard-working low-paid.

Making these programmes has reminded me how far the language of class has been expunged from politics. The triumph of grocer's daughter Margaret Thatcher put paid to her party's toffs who sneered at her cohort as "garagistes". John Major followed on with his promise of the "classless society". The party so effectively buried its class history on Alec Douglas Home's grouse moor that it now claims as an accidental irrelevance that its front bench happens to harbour so many multimillionaires and old boys of top public schools, from whence come 58% of Tory MPs (15% on Labour benches).

Labour shies away from crude class attack, probably wisely saying it's not where you come from but what you stand for that matters – though they might point out the frequent synergy between them. New Labour was so afraid of being cast as a cloth cap, northern party of dying industries that Tony Blair proclaimed "the class war is over". He chose to end the war, not class. He could have galvanised the great majority that have been cheated by an overweening super-class but thought it electorally necessary to mimic the Tory myth of the undifferentiated big-tent "middle".

My series touches little on the party politics of class, exploring instead the social realities beneath. Why do people falsely believe class is fading? Because the postwar years did see an exceptional upward surge, as a great increase in white collar and middle managerial jobs changed a two-thirds working class society into two-thirds middle class: it's worth noting it happened not via education but the changing labour market. Then social progress stopped – a study comparing the fate of children born in 1958 with those born in 1970 shows the latter more hermetically sealed into the social class of their birth.

British children's achievement is more closely linked to parental status than in most developed countries. Only 21% of children from families in the lowest fifth of incomes get five good GCSEs, against 75% from the richest fifth. Class trajectory is almost set before they get to school. Usha Goswami, a Cambridge University neuroscientist, explains how much the first year of life shapes the brain, babies thriving according to the love, language, empathy and intellectual stimulation they receive. All parties now talk about the importance of early years, yet we invest least in the youngest.

And all parties avoid one inconvenient fact raised by Oxford's John Goldthorpe: social mobility goes both ways. If poorer children rise up, some from higher classes must fall. Room at the top is limited, and there is little prospect of another 60s-style surge in good jobs. Politicians pretend "it's not a zero sum game", but ask recent graduates discovering good jobs don't multiply to greet more well-qualified applicants.

Class is a tangled web of education, taste, history and illusion – but follow the money, and income matches class pretty accurately. GDP has doubled since 1978, but only the top 10% have seen incomes grow at or above that rate, twice as fast as the median and four times faster than the bottom 10%. As universities minister David Willetts has honestly acknowledged, "Western societies with less mobility are the ones with less equality too." When the income gap is wide, few cross the class divide, so remedies may lie less in schools than in the society they reflect.

As Richard Wilkinson, co-author of The Spirit Level, says, "Boosting social mobility without addressing income inequality is like trying to diet without worrying about calories." Avoiding the word class, all parties instead urge social mobility. But they never say why we should bother swapping round which people are mega-rich and which are dirt poor, when it's the unjust gulf in wages and rewards that does the social damage.

By: Polly Toynbee

Polly Toynbee is a columnist for the Guardian. She was formerly BBC social affairs editor, columnist and associate editor of the Independent, co-editor of the Washington Monthly and a reporter and feature writer for the Observer.