Different but equal? Exploring potential catalysts of disparity in remand decision-making in the youth court

Abstract

The disproportionate use of remand detention (i.e. pre-trial detention) for vulnerable and marginalized youth is an issue of concern globally and demographic disparities in youth remand decision outcomes have been found in many jurisdictions, including England and the Netherlands. This article aims to explore and identify potential catalysts of disparity in the collective process of remand decision-making in youth courts. Drawing from Ulmer’s ‘inhabited institutions’ perspective, and the related ‘court community model’ and ‘focal concerns model’, and empirical findings from research in Dutch and English youth remand courts, this article suggests that several distinctive mechanisms and features of the youth remand decision-making process might function as catalysts of disparity. The findings indicate that the focus on ‘risk’ and ‘welfare needs’, the distinctive context defined by time constraints, limited information, shortages of readily available services, interdependency and interdisciplinary, and high stakes, combined with the profoundly human nature of courtroom workgroup decision-making, make the remand decision-making process in youth courts particularly prone to producing unwarranted disparities. Ultimately, informed by the theoretical perspectives and empirical findings, the article provides insights into how and why disparities might occur in youth remand decisions and offers suggestions for policy, practice and future research.

Equality in the Youth Court: Meaning, Perceptions and Implications of the Principle of Equality in Youth Justice

“…Given the abundance of evidence of disparities in youth court decision-making in practice, more empirical research is needed to locate the root causes of inequalities in the youth court (cf. Lynch, 2019; Van den Brink, 2021b). This should include, inter alia, psychological studies into the role of unconscious bias and stereotyping in youth court decision-making, as well as empirical socio-legal research into how broader societal inequalities play into the operation and decision-making of the youth court (Lynch, 2019).…”

“…This section explores practitioners’ perceptions of equality in the youth court on the basis of semi-structured interviews with 25 youth court professionals from two Magistrates’ Courts in a big city in England. The interviews were conducted late 2019 and early 2020 in the context of a larger qualitative empirical study on remand decision-making in youth courts (see Van den Brink, 2021a, 2021b). With the permission of the MoJ, Her Majesty’s Courts and Tribunals Service (HMCTS) and the Crown Prosecution Service (CPS) and the informed consent of the respondents, the author interviewed court legal advisors 2 (n = 8), prosecutors (n = 4), defence lawyers (n = 6) and Youth Offending Team (YOT) officers 3 (n = 7).…”

A Multi-disciplinary and Comparative Approach to Evaluating Pre-trial Detention Decisions: Towards Evidence-Based Reform

“…Other task characteristics, namely heavy caseloads and the resulting sense of time pressure, have also been frequently documented in both jurisdictions (e.g., Cape & Smith, 2016; College voor de Rechten van de Mens, 2017;Crijns et al, 2016;Dhami, 2003;Grech, 2017;Smith, 2020;Van den Brink, 2022). For example, in an observational study of bail/remand hearings in EW, Dhami (2003) reported that the average duration of hearings was less than 10 min, with some lasting less than 1 min.…”

“…It has also been found that the underpinning risk judgments in NL can be informed by a wide variety of legal and extra-legal factors (College voor de Rechten van de Mens, 2017; Van den Brink, 2018; cf. Van den Brink, 2022). Nevertheless, research additionally indicates that, in NL, the decisive element in judgments of the risk of reoffending and risk of public disorder often ultimately boil down to the perceived seriousness of the offence (Stevens, 2012).…”

‘How can you punish a child for something that happened over a year ago?’ The impacts of COVID-19 on child defendants and implication for youth courts

“…19 Children should be treated differently to adults in court, and require person-centred approaches tailored to the individual needs of a child to effectively exercise their right to a fair trial. 20 This could include recognition of ethnic heritage, special educational needs (SEND), mental health illness and other individual vulnerabilities. By way of context, in England and Wales, when a child (aged between 10 and 17) is charged with an offence, they will appear before a youth court.…”