On Monday 10 November 2014, the government took the unusual step of accepting an amendment to a parliamentary bill during its third (and final) reading in the House of Lords. The legislation was the Criminal Justice and Courts Bill. The amendment gives arrested 17 year olds the same rights as younger children to be transferred to local authority accommodation, rather than being locked in cells overnight.
The vote was a significant victory for Just for Kids Law, and other children’s rights campaigners. Equally importantly, it was a rare example of political parties coming together to give greater protection to children in the criminal justice system.
As far as the amendment was concerned, it was a case of third time lucky.
The crossbench peer, the Earl of Listowel, a long-standing advocate for young people’s rights, had put forward the exact same wording at the bill’s committee stage in July, and again at report stage, in October. On both occasions, it was flatly rejected. The Minister of State for Justice Lord Faulks told the house that, while government was sympathetic in principle, the change was too complicated to be rushed through via the current bill.
What happened between October and November to prompt the government’s sudden change of heart? It is a question which I and my Just for Kids Law colleagues have been asking itself ever since.
The concession came five months after we started a dedicated and multi-pronged campaign to bring about just such a change. Just for Kids Law has long argued that the legal discrepancy allowing 17 year olds to be treated as adults in the police station was anomalous and dangerous, and that children this age should have the full range of protections given to their younger counterparts. In 2013, we brought a high court challenge on the basis that the practice of denying them the right to have a parent or other ‘appropriate adult’ with them at the police station was unlawful and had to end. The high court agreed. But while its ruling was important recognition of the vulnerability of children this age, we were aware that other loopholes in police treatment of 17 year olds remained, and that these also needed closing.
Following our successful judicial review, we continued to urge the Home Office to act. In October 2013, an official assured us that in the wake of the case, the government did, indeed, intend to end all the anomalies which leave arrested 17 year olds less protected than other children. What he couldn’t tell us, was when this would happen. Just two months later, we heard news which confirmed that the change couldn’t come soon enough.
On 3 December 2013, 17-year-old Kesia Leatherbarrow (pictured, above) was found dead in a friend’s garden, soon after being released from police custody. Kesia had been arrested for breaking a window and having a small amount of cannabis, and had a history of self-harm and depression. Despite this, she was kept in a police cell all over the weekend. If she had been 16, she would have had the right to be transferred to local authority care overnight. As a 17 year old, however, she had to be treated as an adult and had no such right. Her mother, Martina Brincat Baines, knew nothing of her daughter’s arrest until after Kesia’s death. She believes that if Kesia had been able to be moved somewhere she could have been better looked after, she might not have taken her own life.
Kesia’s was the third suicide that we knew about associated with 17 year olds being treated as adults in the police station. Our earlier judicial review had been supported by the parents of Eddie Thornber and Joe Lawton, 17 year olds who had killed themselves in 2011 and 2012, respectively. Although Eddie and Joe’s deaths were unrelated, there were common threads: both boys had been arrested on minor charges; both died soon after being released from custody; both had been high-achieving and ambitious; neither had told their parents anything about their arrests, nor had an adult with them at the police station to give any guidance or reassurance. Both the Lawtons and Thornbers believe that if their sons had received older and wiser counsel, they would have seen their arrests were not the end of the world, and they would not have been driven to the despair of taking their own lives.
The loophole which meant Joe and Eddie’s parents weren’t informed of their sons’ arrests had now been closed, thanks to the judicial review, but learning of Kesia’s death jolted us back into action. Despite earlier assurances, Home Secretary Theresa May continued to delay (and refused to meet the three families to hear their concerns).
We realised that if the government wasn’t prepared to act quickly off its own bat, we would have to find a way of making them. We were supported by a team of barristers from Doughty Street chambers, who offered their services for free: Caoilfhionn Gallagher (who had acted in our first judicial review, and was also representing Joe Lawton’s family at his inquest), Kate O’Raghallaigh, and Martha Spurrier (who was acting for Kesia’s family at her inquest). They advised that there were grounds for bringing another judicial review on behalf of Kesia’s family, and between us we started putting those wheels in motion. However, we knew legal action alone would not be enough.
As a small charity, the risks of going to court are high in terms of cost and damage to reputation. The outcome is never certain, and we saw litigation very much as a last resort. It was also an ordeal we wanted to spare Kesia’s family, if at all possible. So, we also set about raising public and political awareness of the issue and drumming up interest in the media. We were in regular contact with Kesia’s mum and stepfather, Martina and Matt. They were still reeling from Kesia’s death, but determined to do everything they could to prevent another young, vulnerable, person being treated as she had. The parents of Joe and Eddie were also on board again and equally determined that all the remaining loopholes should be closed. (By bizarre coincidence, all three families lived in the Manchester area and had, by this stage, struck up a supportive friendship.)
On Sunday 13 July, an article appeared in the Sunday Times: ‘May failed us, say parents of teen suicides.’ The following Monday, BBC’s Newsnight featured a devastatingly powerful interview with Matt and Martina, where their grief and determination were evident in equal measure. They were filmed in their sitting room, surrounded by photos of Kesia. Other media interest swiftly followed.
Matt and Martina are teachers. Neither had ever had any dealings with the media before. Both were intensely apprehensive about putting themselves forward for interviews. With our support, however, they wanted to go ahead, as they knew that telling Kesia’s story was the best way of demonstrating the urgency of the issue, and bringing about the change that we all wanted to see. We were also active on social media: organising a ‘thunderclap’ on Twitter (a mass, simultaneous tweet) calling on Theresa May to make good on her promise to change the law relating to 17 year olds. With the support of Change.org, Martina set up an online petition which attracted an incredible 30,000 signatures in under a week. We drew heavily on the expertise and generosity of the Standing Committee on Youth Justice, who did sterling work on our behalf, filling in the extensive gaps in our knowledge about how the parliamentary process works. They were instrumental in getting the amendment tabled (all three times), and putting us in touch with the Earl of Listowel, who is known for his interest in child welfare issues. Others, including parliamentarians and doctors, joined the call.
It is impossible to know what finally tipped the balance and persuaded government to act. Just days before the successful vote, its lawyers were still opposing our judicial review on the basis that 17 year olds were already adequately protected and no change was needed. The message we were getting unofficially from sources close to the Home Office was more conciliatory – accepting that there was an issue – but still adamant we would have to be patient. These things take time, we were told. Even those who actively supported our campaign counselled that there was no chance anything would happen during the life of this parliament.
Below are some reflections following the passing of the amendment which may be helpful to other campaigners:
- Working closely with families who have experienced the problem first hand, who are willing to speak to the media is utterly essential. No one can tell their story more powerfully and persuasively than they can, or highlight why change is needed. Kesia’s mum and step dad, Martina Brincat Baines and Matt Baines, went from being immobilised by grief, to accomplished and compelling media interviewees in front of our eyes during the space of a few weeks. On the day that the Lords vote was passed, Martina did a series of live radio and television interviews, one after the other, during what was an exhausting day. At each one, she explained clearly and simply why vulnerable teenagers like her daughter need better protection. No campaigner or lawyer – however experienced or media trained – could have matched her.
- The media can be a powerful ally (although obviously not without risk). Press coverage in the shape of interviews with Kesia’s parents humanised the issue, forcing it up the political agenda, and helping garner public support for an ostensibly unpopular issue (safety of arrested 17 year olds). A side benefit is that we found journalists approaching the Home Office were able to elicit more information about its intentions from the press office than our legal team had been able to glean from its lawyers.
- Know your organisation’s limitations – and don’t be afraid to ask for help. Just for Kids Law is a small charity, with no previous experience of political lobbying. We knew we wanted the government to accept our amendment during the passage of the Criminal Justice and Courts Bill, but had no idea how to go about it. We relied to a huge extent on the expertise and generosity of both Anna Boehm at the Standing Committee on Youth Justice, and Mair Williams, at public relations company Weber Shandwick. SCYJ were already lobbying on the bill and agreed to put forward our amendment (and to keep putting it forward, until government finally said yes); Mair was an invaluable source of information and advice, particularly over how Matt and Martina should approach their own MP for support, and how to prepare for a subsequent meeting with a government minister.
- Legal action is risky and expensive for charities and should only be considered as a last resort. However, it can be a useful additional source of pressure, and helps make an issue topical from the media’s point of view.
- Don’t take no for an answer; don’t necessarily listen to those who say it can’t be done – or can’t be done, yet. If you have further strings to your bow and the families are still on board, keep going.
- Public and media support was vital, but would only get us so far. For the campaign to succeed, we needed the law to change, either through legal action, or a change in legislation.
- Press releases (however elegantly written) are often ignored. Far better to put resources into working with key trusted journalists (preferably who have a background of taking an interest in this kind of issue). Once a story has appeared in one media outlet, other organisations are far more likely to want to take it up.
- Choose your battles carefully. Campaigning is demanding of time, energy and emotion – and inherently unpredictable. You need to be able to seize opportunities as they arise; and to adapt and respond as events unfold. In a small charity, you and your colleagues are only likely to be able to do this, and keep on doing it, if the issue at stake is absolutely at the core of what your organisation stands for, and is close to the hearts of all those involved.
- Don’t be afraid to build unlikely allegiances. Just for Kids is probably better known for being on the opposite side of the argument to the police, say, when we are defending young people in court, or around the issue of stop and search. However, we found we were in agreement on the subject of whether arrested 17 year olds should be treated as adults or children. The police gave us a statement backing our campaign, which reinforced how widely supported and common sense the change we were calling for was.
- Being bold and taking the initiative can make all the difference. It is easy for small charities to be reactive, given their limited resources. By going out on a limb, we were able to fire up the campaign in a way which would otherwise have been inconceivable. After learning of Joe Lawton’s tragic death, Just for Kids Law director Shauneen Lambe contacted his parents by sending a letter via their MP; she wrote to Kesia’s parents via the funeral director, which was the only detail included in a local newspaper report about Kesia’s death which gave any clue of how to contact them. Not every bereaved family will want to take part in a wider campaign, but it is our experience that some will welcome it as a way of channeling their grief into action.
Just for Kids Law had no previous experience of political lobbying. It may be that our naivety actually worked in our favour on this occasion. More seasoned political campaigners were telling us we were too late to get an amendment to the Criminal Justice and Courts bill – but no one seemed able to tell us why. Government had accepted that change was needed – Lord Faulks had said as much in the Lords when the Earl of Listowel had raised the amendment the first two times (although their lawyers were still saying the opposite to our lawyers).
We knew the Criminal Justice and Courts bill was an obvious legislative vehicle for the amendment. We knew the bill already included a provision relating to arrested 17 year olds (giving them the right to have an adult with them before DNA samples are taken), so didn’t understand why our amendment couldn’t be tagged on to this. We knew it was just, literally, a case of amending one word in existing legislation (changing the definition of ‘juvenile’ in the Police and Criminal Evidence Act 1984 from under 17s to under 18s). What we didn’t know was why government couldn’t just get on and make the change now.
As luck would have it, that was a question that Martina and Matt would have a chance to put directly to policing minister Mike Penning. Some time earlier, they had gone to see their MP, Lindsay Hoyle, to ask for his support. Hoyle, a Labour MP and deputy speaker, had offered to arrange a meeting with Penning, who happened to be a friend of his, and – entirely coincidentally – this was scheduled for just a few days ahead of the crucial Lords vote. Matt and Martina travelled down from Manchester for what was to be their first ever visit to the Houses of Parliament. Armed with photos of Kesia, they told Penning their story, explained their concerns about the lack of protections for 17 year olds, and made one simple request: please could he find out if there was a good reason why the law couldn’t be changed sooner rather than later? Penning appeared not to be familiar with Kesia’s case (we think he had seen them simply as a favour to Hoyle, without really knowing what he was letting himself in for). To his great credit, however, he was candid enough to admit he didn’t know the answer to their question. He would find out and get back to them.
Matt and Martina didn’t actually hear any more from Penning, and we have no idea what went on behind the scenes after the meeting. What we do know, however, is that on the Friday before the Monday when the third reading of the bill was due in the Lords, we started hearing whispers that there was movement afoot. We didn’t quite dare to believe it.
Matt and Martina had been planning to travel down to London on the day of the Lords vote to deliver their online petition to the Home Office. Instead, they found themselves sitting in the gallery of the House of Lords as guests of the Earl of Listowel, watching him put his amendment for the third time. On this occasion, instead of batting it back, Lord Faulks announced the government would accept the change. ‘17 year olds, as with 12- to 16-year-old children, must be transferred to suitable local authority accommodation,’ rather than being held in police cells overnight, Faulks told the House.
It was an incredibly emotional moment. All the more so when the earl went on to talk about Kesia, Eddie and Joe – and also about Martina and Matt. ‘Great tribute must go to Martina and Matt Baines, the mother and stepfather of Kesia Leatherbarrow. Despite their terrible and at times overwhelming grief, they threw themselves into campaigning for what they think of as “Kesia’s law”….Without the commitment of these extraordinary parents in their time of enormous loss, I do not think that the changes would have been made today.’
We couldn’t have put it better ourselves.
Fiona Bawdon worked on Just for Kids Law’s #stillachildat17 campaign. These are her personal views.