Chapter 8: Youths Flashcards
1
Q
1 Youth court - overview
1.1 Introduction
A
If a young person between the ages of 10 and 17 commits an offence their route through the criminal justice system will be different to that which an adult will follow. This is because the youth justice system has two specific aims which guide the way in which youths will be dealt with at the
various stages of the process. The aims are:
* to prevent children and young people from offending s. 37 Crime and Disorder Act 1998 (‘CDA’); and
* to have regard to the welfare of the child or young person Section 44 Children and Young Persons Act 1933 (‘CYPA’).
2
Q
1.1 Introduction
A
The majority of young people will be tried and sentenced in the youth court.
Different terms are used to refer to those aged between 10 and 17 who pass through the criminal justice system. Age is the key factor that determines which term will be used. Age also plays a significant role in the sentence that a defendant aged 17 and under will receive in the event of a
conviction. For ease of reference, the term ‘youth’ will be used throughout these sections when addressing
specific points applicable to all offenders who are aged 17 and under, unless otherwise stated.
3
Q
1.2 Age of criminal responsibility
A
It is conclusively presumed that no child under the age of 10 years can be guilty of an offence. Different terms are used to refer to those aged between 10 and 17 who pass through the criminal
justice system. Age is the key factor that determines which term will be used. Age also plays a significant role in the sentence that a defendant aged 17 and under will receive in
the event of a conviction
4
Q
Juvenile
A
A person who is under the age of 18.
5
Q
Adult
A
Aged 18 or over. With reference to sentencing procedure ‘adult’ sometimes means a person aged 21 or over, as that is the age an offender
becomes liable to imprisonment rather than detention in a Young Offender Institution.
6
Q
Child
A
The Children and Young Persons Act 1933 s.107 defines a ‘child’ as a person under the age of 14 years old
7
Q
Young Person
A
The Children and Young Persons Act 1933 s.107 defines ‘young person’ as a person aged between 14 and 17 (inclusive).
8
Q
Persistent Young Offender (PYO)
A
No statutory definition. Guidance contained within the Sentencing Council publication. Sentencing Children and Young People: Definitive Guideline states that a young
person is likely to be categorised as a PYO if they have been convicted of, or made subject to a pre-court disposal that involves an admission or finding of guilt, in relation to imprisonable offences on at least 3 occasions
in the past 12 months. Some sentences are only available to a PYO (e.g. a Detention and Training Order when offender is under 15 years old)
9
Q
1.3 Court process for youths
A
There are certain circumstances where a youth can appear before the adult magistrates’ court or the Crown Court and these will be addressed in a separate section. For those youths who are prosecuted the procedure which follows differs in a number of ways
from that which applies to adults and there are particular rules that apply to youth court proceedings.
10
Q
1.3 Court process for youths
A
Youth courts are essentially magistrates’ courts. This means that trials in the youth court are a
form of summary trial. However, the jurisdiction of the youth court is different to the adult magistrates’ court. There is a presumption that youths will be dealt with by the youth court for nearly all offences, even those classed as indictable only for adults.
11
Q
1.4 Youth court- composition and procedure
A
A youth court will consist of either:
* District Judge sitting alone (as in the adult magistrates’ court); or
* Not more than three magistrates.
Magistrates and District Judges are required to undergo specialist training to sit in the youth court.
12
Q
1.4 Youth court- composition and procedure
A
Reporting restrictions apply automatically to those who appear in the youth court. They can be
lifted although this is rare, especially before conviction. This is different to the adult magistrates’ court and Crown Court where reporting restrictions are discretionary.
13
Q
1.5 Persons present
A
The youth court is not a public court, unlike the adult magistrates’ court or Crown Court (unless sitting in chambers). Only the following can be present in a youth court (s.47 CYPA 1933):
* Members and officers / officials of the court (i.e. the magistrates, court ushers etc);
* Parties to the case before the court (the accused and their parents or guardians) and their legal representatives (lawyers in other cases cannot enter the courtroom);
* Witnesses and other persons directly concerned in the case (i.e. probation officers and social
workers);
* Bona fide representatives of newspapers or news agencies (but note reporting restrictions);
* Such other persons as the court may specially authorise to be present (for example pupil
barristers, other relatives of the accused).
14
Q
1.5 Persons present
A
While the public are excluded from the youth court they are not excluded from the adult magistrates’ court or the Crown Court even when a youth is appearing there as a defendant or as
a witness (unless they are sitting in chambers).
15
Q
1.6 Parents or guardians
A
If the accused is under 16 the court must require a parent or guardian to attend with the youth at all stages of the proceedings ‘unless and to the extent that the court is satisfied that it would be unreasonable to require such attendance, having regard to the circumstances of the case’ (s.34A
CYPA 1933).
16
Q
1.6 Parents or guardians
A
If the accused is aged 16 or 17 the court may require a parent or guardian to attend. ‘Guardian’ is defined as anyone who ‘has for the time being the care of the child or young person’ (s.107 CYPA 1933). ‘Parent’ includes an adoptive parent. If the youth is under the care of the local authority their representative must (or may) attend court instead of, or sometimes in addition to, the parent.
17
Q
1.7 Youth court informalities
A
Proceedings are more informal than in the adult magistrates’ court and Crown Court. For example:
* Lawyers and witnesses remain seated
* Lawyers are not robed
* The youth sits in a chair not in the dock and usually their parent or guardian sits next to the
youth and lawyers may sit next to their clients.
* Rather than communicating via the solicitor, magistrates prefer to talk directly with the defendants and their parents
18
Q
1.7 Youth court informalities
A
Justices who sit on youth court benches are specially trained.
* The youth and any youth witnesses are addressed by their first names;
* If the youth or youth witness needs to take an oath this will be ‘to promise’ to tell the truth, as
opposed ‘to swear’, as in the adult magistrates’ court.
* The language used is different – e.g. ‘finding of guilt’ is a conviction and ‘order made on a
finding of guilt’ is a sentence
19
Q
1.8 Making modifications in adult courts
A
The European Court of Human Rights said a child must have a broad understanding of the trial process and what is at stake. There are a number of ways that changes can be made to the way that adult courts normally work:
* Arrange a familiarisation visit to the court
* Remove wigs and gowns in the Crown Court
* Refer to a child by their first name
* Have a child sitting out of the dock
* Have a child sitting close to an appropriate adult
* Have a child sitting close to their lawyer
20
Q
1.8 Making modifications in adult courts
A
- Arrange for regular breaks
- Avoid complicated language, use clear and simple questions
- Be proactive in ensuring the child has access to support
- Keep public access to a minimum
- Use an intermediary to help communication
- Use a live link to give evidence
- Take time to explain court proceedings a child what is going on
Any other change to ensure effective participation
21
Q
Summary
A
This section provided an introduction to youths in the criminal justice system:
* The majority of youths will be tried and sentenced in the youth court summarily.
* Youth court proceedings are more informal than adult court hearings.
* Reporting restrictions apply to youth court proceedings and parents/ guardians are generally
present.
22
Q
Youths- arrest and detention
2.1 The police station
A
Juveniles (those aged 17 and under) have the same protection under PACE as adults but there are a number of additional safeguards. A juvenile is treated as a vulnerable suspect and consequently further protective measures are imposed to protect the juvenile suspect. One of the main protections afforded to juveniles detained at the police station is the attendance of the Appropriate Adult (‘AA’). An AA is someone who attends the police station to look after the
welfare of the suspect. AAs are not exclusive to juveniles
23
Q
2.1 The police station
A
‘Anyone who appears to be under 18, shall, in the absence of clear evidence that they are older, be treated as a juvenile.’ The necessity for ‘clear evidence’ that a detainee is 18 or older means that where there is any
doubt, a precautionary approach must be adopted by the custody officer and the police must treat the detainee as a juvenile; any dispute as to age will be for a court to determine if the suspect is charged with an offence.
24
Q
2.2 Who should be informed of the juvenile’s arrest?
A
The person responsible for the juvenile’s welfare must be informed as soon as practicable that the
juvenile has been arrested, why he has been arrested and where he is being detained. The AA, who may or may not be the same person who has responsibility for the welfare of the
child, must also be contacted. The AA must be informed of the grounds for the juvenile’s detention and the whereabouts of the juvenile and must be asked to attend the police station.
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2.3 Appropriate adults
The following persons can act as AAs:
* the parent, guardian or anyone else with parental responsibility;
* a social worker; or
* any other responsible adult who is not a police officer
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A person should NOT be an AA if they:
are suspected of involvement in the offence;
* are the victim;
* are a witness;
* are involved in the investigation; or
* have received admissions prior to attending to act as the AA.
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2.3 Appropriate adults
A solicitor or independent custody visitor who is present at the police station and acting in that
capacity, may not be the appropriate adult. An estranged parent should NOT be asked to act as AA if the juvenile specifically objects to it. Youth Offending Teams (YOT) may have individuals available to act as AA if necessary or there may be groups of trained volunteers available to carry out the role
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2.3 Appropriate adults
If a juvenile admits an offence to, or in the presence of, a social worker or member of a youth offending team other than during the time that person is acting as the juvenile’s appropriate
adult, another appropriate adult should be appointed in the interest of fairness.
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Case of someone vulnerable
In the case of someone who is vulnerable, it may be more satisfactory if the appropriate adult is someone experienced or trained in their care rather than a relative lacking such qualifications. But if the person prefers a relative to a better qualified stranger their wishes should, if practicable, be
respected.
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Appropriate adult who is not a parent or guardian
An appropriate adult who is not a parent or guardian in the case of a juvenile, or a relative, guardian or carer in the case of a vulnerable person, must be independent of the police as their role is to safeguard the person’s rights and entitlements.
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2.4 The role of the Appropriate Adult
Understanding the role of the interview
It is important that the AA understands their role in the interview.
The AA is not expected to simply act as an observer.
The purpose of their presence is to:
(a) advise the juvenile being questioned;
(b) observe whether the interview is being conducted properly and fairly; and
(c) facilitate communication with the juvenile being interviewed.
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Appropriate Adult's Presence
The AA’s presence is to help the juvenile cope with the demands of custody and questioning and to
appreciate the seriousness of the situation. Although the police will brief the AA of their role at the
beginning of any interview, it is always worth checking for yourself that the AA understands their role. The AA can instruct a solicitor on behalf of the juvenile. The AA also has the right to consult with the juvenile in private at any time and also to consult the
custody record
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Private Consultation Opportunity
A detainee should always be given an opportunity, when an appropriate adult is called to the police station, to consult privately with a solicitor in the appropriate adult’s absence if they want. An appropriate adult is not subject to legal privilege
34
Problems in relation to disclosure of information
Problems can arise in relation to the disclosure of information. There is no duty of confidentiality owed by an AA. A confused, upset or angry parent may volunteer information to a police officer
which would otherwise be confidential. A solicitor should always be alert to this danger and it is always advisable to see the juvenile, at least initially, in the absence of the AA.
35
AAs should be present when the juvenile is:
* being read their rights;
* being strip searched or subjected to an intimate search;
* being interviewed;
* attending an identification procedure; or
* being charged.
* being read their rights;
* being strip searched or subjected to an intimate search;
* being interviewed;
* attending an identification procedure; or
* being charged.
36
Must not sign anything in the absence of an adult
A juvenile must not be interviewed or asked to sign anything in the absence of an AA unless authorised by a superintendent or above and only if they believe delay will have certain
consequences and is satisfied that the interview would not significantly harm the juvenile’s physical or mental state.
If a juvenile is cautioned in the absence of an AA, the caution must be repeated in the AA’s presence. The consent of the juvenile’s parent/guardian, as well as their own, is required for participation in any ID procedure. If the juvenile is under 14, the consent of their parent alone is sufficient
37
2.5 Options after interview
In dealing with any offence committed by a child or young person, the police and prosecution have a range of options:
(a) no further action
(b) community resolution
(c) youth caution
(d) youth conditional caution
(e) charge
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2.6 Detention of youths after charge at the police station
The decision to charge follows a similar process as adult offenders, including referral to the CPS. Following charge, the same principles apply to youths as apply to adult offenders in deciding
whether the youth should be bailed or whether detention is necessary (s.38 PACE). The first decision that must be made therefore is, of course, whether bail should be refused. The youth should be released on bail unless one or more of the grounds contained in s.38 exists. These grounds are almost identical to the exceptions found within the Bail Act 1976 except that there is
an additional ground allowing the youth to be detained in their “own interests”.
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2.6 Detention of youths after charge at the police station
If a youth is detained for court, then they should be placed in local authority accommodation unless:
(a) it is impracticable for the custody officer to do so i.e. physically impossible; or
(b) in the case of a youth aged 12 – 17, no secure accommodation is available and other local authority accommodation would not be adequate to protect the public from serious harm.
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2.7 Secure accommodation
Custody officers should however do everything practicable to ensure that the place of detention is local authority accommodation as opposed to the police station. neither a juvenile’s behaviour nor the nature of the offence provides grounds for the custody officer to decide it is impracticable to arrange the juvenile’s transfer to local authority care. The obligation to transfer a juvenile to local authority accommodation applies as much to a juvenile charged during the daytime as to a juvenile to be held overnight.
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2.7 Secure accommodation
It was established in R (on the application of M) v Gateshead Metropolitan Borough Council CA
March 2006 that local authorities are not under a duty to provide secure accommodation whenever a request is received under s. 38(6) PACE. Where the youth has been arrested pursuant to an alleged breach of bail or breach of remand conditions, the above does not apply and the youth can be detained in police custody.
42
2.8 Alternatives to prosecution
There are occasions where youths who have committed an offence can be dealt with by giving them an out of court disposal without the need to prosecute them. The purpose of such disposals is to reduce the risk of further offending by the youth and serve as a proportionate response to the crime committed. The police have a range of options available depending on the seriousness of the offence and the circumstances of the offender.
43
2.8 Alternatives to prosecution
A youth caution is a formal out-of-court disposal as set out in the Crime and Disorder Act 1998. It is the final step before prosecution. The police must refer a youth who has received a youth caution to the youth offending team.
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2.9 Cautions
Youth cautions can be used for any offence provided that the statutory criteria are satisfied:
* the police are satisfied that there is sufficient evidence to charge the youth with an offence;
* the youth admits the offence to the police;
* the police do not consider that the youth should be prosecuted or given a youth conditional caution for the offence
45
2.9 Cautions
The police cannot issue a youth caution for an offence that is indictable only in the case of an adult without the authority of the CPS. There is no statutory restriction on the number of youth cautions that a youth can receive, and a youth may receive a youth caution even if he or she has previous convictions, reprimands,
warnings, youth cautions and youth conditional cautions
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2.10 Summary
This section provided an introduction to youths in the criminal justice system when in the police station.
* Youths need an appropriate adult present at certain points in the detention process.
* PACE COP C sets out who can and who cannot be an appropriate adult.
* The role is not passive. It also considered alternatives to prosecution by way of cautions. Youths who are detained for court should ideally be provided with secure local authority
accommodation
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3. Youths- court procedure
3.1 Court procedure for youths
For those youths who are prosecuted the procedure which follows differs in a number of ways from that which applies to adults and there are particular rules that apply to youth court
proceedings.
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3.1 Court procedure for youths
Youth courts are essentially magistrates’ courts. This means that trials in the youth court are a
form of summary trial. However, the youth court can also try indictable only offences. There is a presumption that youths will be dealt with summarily, even for indictable offences. Ideally this will be by the youth court. There are, however, certain circumstances where a youth can appear before the adult magistrates’ court or the Crown Court which will be discussed later.
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3.2 Location of first hearing
Most youths will have their first hearing before the Youth Court; however, there are of course exceptions to this rule. A youth will have their first hearing before the adult magistrates’ court in
the following circumstances:
* The youth is jointly charged with an adult;
* The youth is charged with aiding and abetting an adult to commit an offence;
* An adult is charged with aiding and abetting a youth to commit an offence;
* The youth is charged with an offence that arises out of the same circumstances as, or is connected with, an offence that an adult is charged with.
Other than where a youth becomes an adult during the course of proceedings (i.e. after the first hearing) there are no circumstances whereby an adult can appear before the Youth Court.
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3.3 Pleas
The court must ask the youth to enter a plea on the first occasion. If a request to adjourn the hearing is made and granted the case will be adjourned for the shortest possible time. If the youth enters a guilty plea the court should endeavour to pass sentence on the same day but may need to adjourn for the preparation of a pre-sentence report. If the youth enters a not guilty plea the parties will be asked to complete a case management
form and directions will be made for the future management of the case, just as in the adult magistrates’ court.
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3.4 Where will a youth be tried?
A trial in the youth court is essentially the same as a trial in the adult magistrates’ court and part 24 of the CrimPR applies to both. Most youths are tried in the youth court, notwithstanding the seriousness of the offence. This presumption applies even in the case of indictable only offences (s.24 MCA 1980) except homicide and certain firearms offences. A youth will only be tried in the adult magistrates’ court where they are jointly charged with an adult. A youth has no right of election to the Crown Court when charged with an either-way offence.
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3.5 Crown Court trial for youths
There are certain situations where a youth must be tried in the Crown Court and not a youth
court:
(a) Youth charged with homicide (murder or manslaughter);
(b) Youth charged with certain firearms offence or offences of minding a weapon under s28(3) VCRA 2006, where, if convicted, the youth would be subject to a mandatory minimum
sentence under s311 Sentencing Act (SA) 2020;
(c) Youth charged with an offence to which s.249 SA 2020 applies and the youth court has determined that, if convicted, a sentence beyond its powers should be available (thus it is a
‘grave crime’);
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3.5 Crown Court trial for youths
There are certain situations where a youth must be tried in the Crown Court and not a youth
court:
(a) Youth charged with homicide (murder or manslaughter);
(b) Youth charged with certain firearms offence or offences of minding a weapon under s28(3) VCRA 2006, where, if convicted, the youth would be subject to a mandatory minimum
sentence under s311 Sentencing Act (SA) 2020;
(c) Youth charged with an offence to which s.249 SA 2020 applies and the youth court has determined that, if convicted, a sentence beyond its powers should be available (thus it is a
‘grave crime’);
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3.5 Crown Court trial for youths
(d) Youth charged with a specified offence under s306 SA 2020 and it appears to the court that if the youth is found guilty or pleads guilty the criteria for imposing an extended sentence
under s.254 SA 2020 will be necessary (‘dangerous offender’);
(e) Youth jointly charged with an adult who has been sent to the Crown Court and it is in the interests of justice to send the youth to the Crown Court for trial.
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3.6 Plea before venue / Mode of trial
Generally there will be no plea before venue / mode of trial in the youth court. However, it applies in the following circumstances:
* Youth charged with an offence capable of being a ‘grave crime’ under s.249 SA 2020;
* Youth jointly charged with an adult with an either-way or indictable only offence.
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3.6 Plea before venue / Mode of trial
When deciding mode of trial the youth court should hear representations from both the prosecution and defence and the facts should be presented in a fair and balanced way by both parties. The court is entitled to have regard to the youth’s previous convictions.
Where several defendants, all under 18, are charged together the court must consider each defendant separately. This means that one youth can be sent for Crown Court trial while the others remain in the youth court, although this would be rare.
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3.6 Plea before venue / Mode of trial
If the accused behaves in a disorderly manner the plea before venue procedure can be carried out
in the youth’s absence provided the youth is legally represented. The procedure can be administered by a single justice. Proceedings can also be adjourned, as in the adult magistrates’
court. The ‘Grave Crimes’ and ‘Youth Charged with an Adult’ pages to follow provide further details regarding mode of trial in each circumstance.
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3.7 What are ‘grave crimes’?
Section 250 SA 2020 provides for the punishment of youths convicted on indictment of certain serious offences, known as ‘grave crimes’. Section 249 SA 2020 defines what is capable of being a grave crime as:
(a) Any offence that in the case of an adult carries 14 years or more imprisonment;
(b) Offences under ss.3, 13, 25 and 26 of the Sexual Offences Act 2003.
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3.7 What are ‘grave crimes’?
Section 250 SA 2020 allows a Crown Court to sentence a youth to any length of detention which would be possible if they were an adult. It is a power used where the maximum sentences
available to the youth court are not sufficient. Essentially this is two years’ detention but youth sentencing will be covered in a separate section.
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3.8 Grave crimes- plea before venue/ mode of trial
The plea before venue / mode of trial procedure is used where s.249 SA 2020 applies. The youth is asked to indicate a plea. If the indication is not guilty the youth court must consider whether, if convicted of the offence, it ‘ought to be possible’ (s.51A(3)(b) CDA 1998) to impose a sentence under s.250 SA 2020. If they consider it should be, then they must send the youth to the Crown Court for trial. In other words they are considering whether their maximum sentencing powers of two years’ detention would be sufficient. The youth’s previous convictions can be taken into
account at this stage
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3.8 Grave crimes- plea before venue/ mode of trial
Originally no indication of plea was taken so there was a mode of trial decision but no plea before
venue. The decision therefore had to be made on the basis that it would be a not guilty plea as there was no power to commit for sentence after guilty plea or trial in the youth court, even on a
s.249 offence. A youth could therefore find themselves in the Crown Court pleading guilty at the first opportunity and, taking into account credit for that guilty plea, receiving a sentence that
would have been within the youth court’s powers. To circumvent this, the provisions have been amended to include an indication of plea and the power to commit for sentence on summary conviction of an offence to which s.249 SA 2020 applies (s16 SA 2020).
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3.8 Grave crimes- plea before venue/ mode of trial
If a guilty plea is indicated in the youth court, this is taken as a plea of guilty, in the same way as in the adult magistrates’ court. The court then moves on to consider whether their sentencing powers are sufficient. They can now make a fully informed decision on whether a sentence of over
two years’ detention is necessary
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The procedure for deciding whether s.250 SA 2020 applies can be thought as a two stage test, whether it is a guilty or not guilty indication:
* Is it an offence capable of being a grave crime? i.e. is it one to which s.249 SA 2020 applies? If
yes, then:
* Is the appropriate sentence one of over two year’s detention?
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Youth charged with multiple offenses
Where a youth is charged with multiple offences and s.249 SA 2020 applies to one or some of the offences, but not all of them, the court can consider the combined seriousness of all the offences when determining whether s.250 SA 2020 applies. Those that are related may be sent for trial if
s.249 SA 2020 is found to apply. However, on conviction, the Crown Court can only order longterm detention for the offence(s) to which s.249 SA 2020 applies.
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Key case: R (H) v Southampton Youth Court [2005] 2 Cr App R (5) 171
In R (H) v Southampton Youth Court [2005] 2 Cr App R (5) 171 it was emphasised that youths, especially those under 15, should be tried in the youth court wherever possible, with the Crown Court being ‘reserved for the most serious cases’.
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3.9 Dangerous offenders
Section 51A (2) and (3)(d) of the Crime and Disorder Act 1998 provides for youths who are considered dangerous to be sent to the Crown Court. This applies where:
(a) The offence is a specified offence within the meaning of s.306 SA 2020; and
(b) It appears to the court that, if he is found guilty, the criteria for the imposition of a sentence of extended detention under s.254 SA 2020 would be met.
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If both criteria of dangerous offenders are met then...
If both are met then the youth must be sent directly to the Crown Court for trial. There is no plea before venue or mode of trial procedure. Any related offences may also be sent. The criteria for imposing a sentence of extended detention for youths under s.254 SA 2020 are similar to adults, but not quite the same
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They are..
(a) The youth is convicted of a specified offence (as per s.306 SA 2020);
(b) The court considers there is a significant risk of serious harm to the public from the youth
committing further specified offences; and
(c) The offence warrants the equivalent determinate sentence of at least four years.
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Extended Sentence
An extended sentence, as in the case of an adult, is made up of an appropriate custodial term
plus an extended licence period. Also as in the case of adults, s.308 SA 2020 details the factors to
be taken into account by the court when assessing dangerousness.
If jurisdiction is retained and further information comes to light during or after the trial which leads the court to conclude, on conviction, that the youth should be sentenced under the
dangerousness provisions, they have the power to commit to the Crown Court for sentence under s.17 SA 2020.
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Definitive Guidelines
The Sentencing Children and Young People: Definitive guideline makes it clear that the power to send youths to the Crown Court for trial under the dangerousness provisions should be rarely used. This is not least because there will often not be sufficient information about the offence in
order to be able to make a fully informed decision.
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3.10 Dangerous offences and grave crimes
Certain serious violent and sexual offences are capable of being both specified (within s.306 SA
2020) and grave crimes (within s.249 SA 2020). It may seem logical to deal firstly with whether the offence is a grave crime, as if a sentence of
over two years is not required then dangerousness (which requires a sentence of at least four years) cannot be a live issue. However, the Youth Court Bench Book, which provides guidance for youth courts, indicates that dangerousness should be considered first.
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3.11 Youth charged jointly with an adult
If a youth is jointly charged with an adult the youth may appear in the adult magistrates’ court for first appearance with the adult. The court will consider firstly where the adult should be tried, then go on to consider where the
youth should be tried. If the youth has their first appearance at a different time to the adult then it will take place in the
youth court but the court still has to consider where the adult who is jointly charged is being tried
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3.11 Youth charged jointly with an adult
The plea before venue / mode of trial procedure applies here. The first stage is plea before venue and the youth will be asked to indicate a plea. Over the next few pages, we will look at four combinations of a youth jointly charged with an adult, beginning with when an adult is sent for trial in the Crown Court and the youth indicates a not guilty plea.
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3.11.1 Adult is sent for Crown Court trial - youth indicates not guilty plea
If the magistrates have determined that the adult should be tried in the Crown Court then they must proceed to the mode of trial procedure. The criterion is whether it is ‘necessary in the interests of justice’ to send the youth to be tried with the adult (s.51(7) Crime and Disorder Act 1998). If the youth is sent for trial under this provision the youth can also be sent for trial for any
related indictable offences with which the youth is charged. If the youth is charged with related summary only offences they can only be sent if they are also punishable with imprisonment or involve disqualification from driving (s.51(8) & (11) CDA 1998).
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3.11.1 Adult is sent for Crown Court trial - youth indicates not guilty plea
The prosecution and defence make representations as to whether it is in the interests of justice to send the youth to the Crown Court or not. There are often conflicting interests that the court has to weigh in the balance. If the youth’s trial is separated from the adult’s the prosecution witnesses will have to give evidence twice. It may be that the youth court hearing the youth’s trial will reach a different and therefore inconsistent verdict to the jury hearing the Crown Court trial of the adult. This would obviously be undesirable. However, sending the youth to the Crown Court means that the youth would not be tried in the court best equipped to deal with youths. Younger defendants particularly may find the Crown Court intimidating
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3.11.1 Adult is sent for Crown Court trial - youth indicates not guilty plea
When considering in which court the youth should be tried the court is required to consider the guidance contained in the Sentencing Children and Young People: Definitive Guideline. This lists, at paragraph 2.12, examples of factors to be considered. It is not an exhaustive list but is
reproduced here:
(a) whether separate trials will cause injustice to witnesses or to the case as a whole (consideration should be given to the provisions of sections 27 and 28 of the Youth Justice and Criminal Evidence Act 1999);
(b) the age of the child or young person; the younger the child or young person, the greater the
desirability that the child or young person be tried in the youth court;
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Sentencing Children and Young People: Definitive Guideline
(d) the lack of maturity of the child or young person;
(e) the relative culpability of the child or young person compared with the adult and whether the alleged role played by the child or young person was minor; and/or
(f) the lack of previous findings of guilt on the part of the child or young person
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Court general power to commit to sentence
The guideline goes on to state that the court should bear in mind that it now has a general power to commit for sentence under s.16 SA 2020. You should note that this provision only applies to offences which fall under s.249 of that same act, as discussed earlier in this section.
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If youth is tried with the adult...
If the court decides that the youth should be tried with the adult, the youth’s case will be sent to
the Crown Court for a Plea and Trial Preparation Hearing, alongside the adult. If the court decide not to send the youth to the Crown Court for trial then, if the youth’s first appearance is taking place in the youth court, their trial will remain there. Once a youth is lawfully before the Crown Court for trial there is no power to remit the youth
back to the youth court for trial even if the adult with whom the youth was sent pleads guilty (R v W (a minor)) v Leeds Crown Court [2012] 1 Cr App R 162). This means that the youth would face
trial alone in the Crown Court
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If youth appearing in the magistrates court
If the youth is appearing in the adult magistrates’ court they must now decide whether to remit the youth’s trial to the youth court. They do have the power to keep it in the adult court but
usually cases are remitted to the youth court in such situations, as it is the venue best equipped to deal with youth defendants.
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Joint offense is capable of being a grave crime
It may be that the joint offence is one capable of being a grave crime under s.249 SA 2020. If the adult is sent to the Crown Court for trial the court will need to consider whether, if the youth is convicted, a sentence under s.250 SA 2020 should be available. This is clearly a relevant consideration in whether the interests of justice criteria are met, although the court would also have the power to send for trial under the s.249/250 SA 2020 provisions themselves.
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3.11.2 Adult to be tried summarily - youth indicates not guilty plea
If the adult consents to summary trial, or the joint charge is a summary only offence, the youth could be tried in the adult magistrates’ court if any of the following apply:
(a) Youth and adult jointly charged with any offence = adult magistrates’ court must try them both;
(b) Youth charged with aiding and abetting adult (or vice versa) = adult magistrates may try them both together;
(c) Youth and adult charged with offences arising out of the same circumstances = adult magistrates may try youth.
If, in scenario (b) and (c), the adult court do not try the youth and adult together they will remit the youth to the youth court for trial.
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3.11.3 Adult pleads guilty - youth indicates not guilty plea
If the adult pleads guilty at the plea before venue stage and the youth indicates a not guilty plea the adult magistrates may try the youth without the adult but are more likely to remit to the youth court for trial as this is the most appropriate venue for a youth to be tried.
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3.11.4 Youth indicates guilty plea or is found guilty
If the youth indicates a guilty plea then the magistrates need to consider whether their sentencing powers are appropriate. The powers of the adult magistrates’ court are restricted in relation to sentencing youths; another section sets out which sentences are available. If none of these
sentences are appropriate then the court will remit the youth to the youth court to be sentenced (s.25 SA 2020). This also applies if the youth has been tried and found guilty in the adult
magistrates’ court. If the case is one which attracts a mandatory referral order the magistrates may remit the case to the youth court but they are not obliged to do so.
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3.12 Summary
This section explored aspects of youth court procedure such plea, trial and what happens when youths are jointly charged with adults.
* Youth court is essentially a magistrates’ court in the format of a summary trial. Generally:
- First hearing- takes place before the youth court
- Plea- is taken on the first hearing and no plea before venue/ mode of trial procedure takes place
- Trial- the presumption is trial will take place in the youth court except in homicide and certain firearm offences
- Sentencing- in the youth court.
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This element looked at times when the general rules above do not apply such as:
* First hearing- when a youth will have their first hearing before an adult magistrates court (e.g. when jointly charged with an adult)
* PBV/ Mode of trial procedure- circumstances when this takes place (e.g. ‘grave crimes’)
* Trial- circumstances when a youth must or may be tried in the adult magistrates’ court or the
Crown Court
* Sentencing- when a youth must or may be committed to the Crown Court for sentence.
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Youths and adults court procedure
4.1 Youth jointly charged with adult
The first appearance will be in the adult magistrates’ court.
What happens to the youth depends on several factors.
(a) Is the youth pleading guilty or not guilty?
(b) Is the adult pleading guilty or not guilty?
(c) What type of offence is the youth charged with?
(d) What type of offence is the adult charged with?
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4.1 Youth jointly charged with adult
If the youth is charged with homicide, firearms with mandatory three year minimum sentence,
served with a notice in serious fraud or child case or charged with a specified offence an meets the dangerous criteria they will ALWAYS be sent to the Crown Court. If the adult is sent to the Crown Court for a trial and the youth is to be tried on the same matter
then the magistrates’ court will have to consider whether it is in the interests of justice (IOJ) for the child or young person and the adult to be tried jointly
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Overarching guideline
IOJ is concerned with the trial.
The overarching guideline Sentencing Children and Young People makes it clear that the proper venue for the trial of any child or young person is normally the youth court. Subject to statutory restrictions, that remains the case where a child or young person is jointly charged with an adult. If the adult is sent for trial to the Crown Court, the court should conclude that the child or young person must be tried separately in the youth court unless it is in the interests of justice for the
child or young person and the adult to be tried jointly.
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4.2 When is it in the interests of justice?
The overarching guideline Sentencing Children and Young People provides the following examples:
* whether separate trials will cause injustice to witnesses or to the case as a whole (consideration should be given to the provisions of ss.27 and 28 of the Youth Justice and Criminal Evidence Act 1999);
* the age of the child or young person; the younger the child or young person, the greater the desirability that the child or young person be tried in the youth court;
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4.2 When is it in the interests of justice?
The age gap between the child or young person and the adult; a substantial gap in age
militates in favour of the child or young person being tried in the youth court;
* the lack of maturity of the child or young person;
* the relative culpability of the child or young person compared with the adult and whether the
alleged role played by the child or young person was minor; and/or
* the lack of previous findings of guilt on the part of the child or young person.
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4.2.1 Deciding the interests of justice
The prosecution and defence make representations as to whether it is in the interests of justice to send the youth to the Crown Court or not. There are often conflicting interests that the court must balance. If the youth’s trial is separated from the adult’s the prosecution witnesses will have to give evidence twice. It may be that the youth court hearing the youth’s trial will reach a different, and therefore inconsistent, verdict to the jury hearing the Crown Court trial of the adult. This would obviously be undesirable
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4.2.1 Deciding the interests of justice
However, sending the youth to the Crown Court means that the youth would not be tried in the court best equipped to deal with youths. Younger defendants particularly may find the Crown Court intimidating. If the court decide not to send the youth to the Crown Court for trial then, their trial will take place in the youth court.
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4.4 Remittal from the Crown Court for sentence
If the adult and youth have been sent to the Crown Court for trial then it will take place before a judge and jury in the usual way. Once the trial has been concluded and if the child or young person is found guilty the court must
remit the case to the youth court, unless it would be undesirable to do so.
The only exception to this is where the offence is homicide
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4.4 Remittal from the Crown Court for sentence
In considering whether remittal is undesirable, a court should balance the need for expertise in the sentencing of children and young people with the benefits of the sentence being imposed by the court which determined guilt given that the judge who heard the trial will reserve sentencing of the adult (if convicted).
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4.5 Summary
This section considered:
First hearing- a youth will have their first hearing before an adult magistrates’ court when jointly
charged with an adult.
Trial- circumstances when a youth must or may be tried in the adult magistrates’ court or the
Crown Court.
How the magistrates’ court decides if it is in the interests of justice
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Youths- sentencing
5.1 General principles
The youth court is the court with the expertise in the sentencing of children and young people. The court must have regard to:
* the principal aim of the youth justice system (to prevent offending by children and young
people); and
* the welfare of the child or young person. All courts must have regard to the Overarching guideline – sentencing children and young
people when sentencing offenders aged under 18
The Sentencing Act 2020 applies
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5.2 Overarching guidelines
In determining the sentence, the key elements to consider are:
* the principal aim of the youth justice system (to prevent re-offending by children and young
people);
* the welfare of the child or young person;
* the age of the child or young person (chronological, developmental and emotional) which
requires a different approach to that which would be adopted in relation to the age of an
adult;
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5.2 Overarching guidelines
* the seriousness of the offence which is determined in the same way as for adults by assessing
the culpability and harm;
* the likelihood of further offences being committed; and
* the extent of harm likely to result from those further offences.
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5.3 Parenting Order
For any child or young person aged under16 appearing before court, there is a statutory requirement that parents/guardians attend all stages of proceedings unless deemed
unreasonable. Additionally, the court has a duty to make a parental bind over or impose a parenting order, if it
would be desirable in the interest of preventing the commission of further offences.
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Discretionary Power to make Orders
There is a discretionary power to make these orders where the young person is aged16 or 17. Any breach by the parent will amount to an offence punishable by fine. The CPS will conduct the prosecution in the magistrates’ court.
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5.4 Significance of age
Sometimes (primarily turning 12, 15 or 18 years old) an increase in the age of a child or young person will have an effect on the maximum sentence available. The relevant age for the purpose of sentence is the age of the offender at the date of conviction.
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5.5 Persistent offenders
Some sentences can only be imposed on children and young people if they are deemed a persistent offender.
There is no statutory definition but:
* if there have been three findings of guilt in the past 12 months for imprisonable offences of a
comparable nature then the court could certainly justify classing the child or young person as a persistent offender; or
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5.5 Persistent offenders
* a child or young person is being sentenced in a single appearance for a series of separate, comparable offences committed over a short space of time then the court could justifiably consider the child or young person to be a persistent offender even if no previous convictions.
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5.5 Persistent offenders
So, for example, a series of robberies committed over a period of two days qualified a defendant as a persistent offender even though they had no previous convictions.
Similarly, a youth aged 14 appeared for sentence for offences of burglary and aggravated vehicle
taking committed on four different days over a two-month period were sentenced as a persistent
offender.
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5.6 Committal for sentence
The youth court (or the adult magistrates’ court if the youth is appearing there) can commit a
youth to the Crown Court for sentence where they are charged with certain serious offences. Three powers of committal to the Crown Court for sentence apply to youths:
(a) Youth is convicted of a ‘grave crime’ offence under s.249 SA 2020 and the court considers a Crown Court should have power to deal with the offender by imposing a sentence of detention under s.250 SA (i.e. a sentence in excess of two years’ detention is required) (s 16 SA 2020).
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5.6 Committal for sentence
(b) Committal for sentence of dangerous young offenders (s.17 SA 2020).
(c) Committal for sentence for related offences (s.19 SA 2020).
Where a youth has been committed in accordance with these provisions the Crown Court can deal with the youth in any way in which it could deal with the youth if they had just been convicted of the offence on indictment before the court
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5.7 Available sentences
There are particular sentences which apply only to youths such as detention and training orders, referral orders and youth rehabilitation orders. There are certain sentences which are only available to youths of a certain age.
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5.7 Available sentences
It should be noted that not all sentences are available to each court. It is for this reason that the adult magistrates’ court should remit the sentence of a youth back to the youth court unless their sentencing powers are appropriate. There is an individualistic approach to youth sentencing- so that sentences are flexible enough to meet the differing needs of the youths who appear in the youth court.
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5.8 Types of sentences
Just like adult offenders there are a range of sentences available
Absolute or conditional discharge and reparation orders for the least serious offences
* Financial orders (fines)
* Community orders are called youth rehabilitation orders (YRO). The offence must be ‘serious enough’ in order to impose a YRO
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Just like adult offenders there are a range of sentences available
* A referral order is the mandatory sentence in a youth court or magistrates’ court for most children and young people who have committed an offence for the first time and have pleaded guilty to an imprisonable offence
* Custodial sentences are called detention and training orders (DTO) and can only be imposed if the statutory threshold has been passed
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5.9 Non-custodial sentences
There are a variety of non-custodial sentences available for youths. The principal ones are:
* youth rehabilitation orders (no statutory minimum, maximum 36 months);
* referral orders (minimum 3 months, maximum 12 months).
* reparation orders; and
* orders against parents, e.g. binding the parents over or making a parenting order.
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5.9.1 Youth Rehabilitation Orders
These fall within the community orders band. Before a YRO can be passed the court must be satisfied that the offence is “serious enough” to warrant it although the offence does not have to
be imprisonable. Courts are able to select from a wide range of sentences and tailor interventions to suit the
particular offender. YROs can be used a number of times.
The menu of possible requirements in a YRO includes:
* activity requirement;
* supervision requirement;
* unpaid work requirement
* programme requirement;
* attendance centre requirement;
* prohibited activity requirement;
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5.9.1 Youth Rehabilitation Orders
* curfew requirement;
* exclusion requirement;
* electronic monitoring requirement;
* residence requirement;
* local authority residence requirement;
* fostering requirement;
* mental health treatment requirement;
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5.9.1 Youth Rehabilitation Orders
* drug treatment requirement;
* intoxicating substance requirement;
* education requirement; and
* intensive supervision and surveillance requirement.
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5.9.2 Restrictions on certain requirements
These requirements are only available for young people aged 16 or 17 years old on the date of conviction:
* unpaid work requirement
* residence requirement
These requirements can only be imposed if the offence is an imprisonable one AND the custody
threshold has been passed. For children and young people aged under 15 they must be deemed a
persistent offender:
* intensive supervision and surveillance requirement.
* fostering requirement.
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5.10 Referral orders
A “referral order” requires an offender to attend each of the meetings of a youth offender panel established for the offender by a youth offending team, and to comply, for a particular period,
with a programme of behaviour to be agreed between the offender and the panel. Essentially, they are in the form of a contract. They may be regarded as orders which fall between community disposals and fines.
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5.10 Referral orders
The minimum term of a referral order is 3 months and the maximum term is 12 months. The length depends on the seriousness of the offence. A referral order is spent when it is discharged, which leaves the youth with a clean slate.
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5.10.1 Mandatory referral order
A referral order is a mandatory if the ‘compulsory’ referral order conditions are satisfied. These
are:
* where the young offender has not previously been convicted of an offence, and
* The young offender pleads guilty to an imprisonable offence and any other offence being dealt with by the court at the same time (these other offences are called ‘connected’ offences).
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5.10.1 Mandatory referral order
However, the compulsory referral order conditions do not apply if the sentence is fixed by law or the court proposes to impose a custodial sentence, hospital order, or absolute or conditional
discharge. In these circumstances the court cannot give a referral order.
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5.10.2 Discretionary referral order
A referral order is discretionary in the following situations. An offender may receive a referral
order: on their second (or later) conviction;
and/or
if the offender pleads guilty to the offence or a connected offence being dealt with by the court. The offence or connected offence(s) need not be punishable with imprisonment.
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A referral order cannot be given where:
The sentence is fixed by law; or
the court feels that an absolute or conditional discharge is justified; or
the court is proposing to make a hospital order; or the court considers that custody is the only correct disposal.
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5.10.3 Breaches
If the young offender breaches a referral order, or is convicted of another offence while subject to a referral order, he may be referred back to the youth court. The youth court may then revoke the referral order and deal with the youth in any manner in which he could have been dealt with for that offence. Alternatively, the court may order the young offender to pay a fine or extend the length of the contract period.
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5.10.3 Breaches
If the young offender breaches a referral order, or is convicted of another offence while subject to a referral order, he may be referred back to the youth court. The youth court may then revoke the referral order and deal with the youth in any manner in which he could have been dealt with for that offence. Alternatively, the court may order the young offender to pay a fine or extend the length of the contract period.
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Breaches
Where a child or young person is in breach of a YRO the following options are available to the
court:
* take no action and allow the order to continue in its original form;
* impose a fine (up to £2,500) (and allow the order to continue in its original form);
* amend the terms of the order; or
* revoke the order and re-sentence the child or young person.
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5.11 Detention and training orders
A Detention and Training Order (DTO) is the only custodial sentence available to the youth court. A custodial sentence should always be used as a last resort and only where an offence is ‘so
serious that neither a fine alone nor a community sentence can be justified.’
They can only apply when a child or young person has been convicted of an offence which is punishable with imprisonment in the case of an adult;
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5.11 Detention and training orders
* No DTO can be imposed by the Youth Court on any offender aged 10 or 11;
* No DTO can be imposed by the Youth Court on anyone aged 12-14, unless they are a persistent offender;
* The minimum length of a DTO is 4 months;
* The maximum length of a DTO is 24 months;
* A DTO may only be 4, 6, 8, 10, 12, 18 or 24 months long;
* Consecutive DTOs can be imposed up to an aggregate of 24 months.
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5.11 Detention and training orders
The court should take account of the circumstances, age and maturity of the child or young person. When considering the relevant offence guideline, the court may feel it appropriate to apply a sentence broadly within the region of half to two thirds of the adult sentence for those aged 15–17 and allow a greater reduction for those aged under 15. This is only a rough guide. A DTO can also be imposed by the Crown Court.
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5.11 Detention and training orders
The first half of the DTO is spent in secure youth detention and the second in the community under supervision. Such supervision is overseen by the YOT and the court is not involved in
deciding what the supervision must entail. An intensive supervision and surveillance requirement and a fostering requirement are both
community alternatives to custody.
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5.11 Detention and training orders
The offence must be punishable by imprisonment, cross the custody threshold and a custodial
sentence must be merited before one of these requirements can be imposed.
An order of this nature may only be imposed on a child or young person aged below 15 (at the
time of the finding of guilt) if they are a persistent offender
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The Overarching guideline – sentencing children and young people says
The term of a custodial sentence must be the shortest commensurate with the seriousness of the offence. Any case that warrants a DTO of less than four months must result in a non‑custodial sentence.
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5.12 Long term detention under s 250 ‘grave crimes’
A child or young person may be sentenced by the Crown Court to long-term detention under s.250 Sentencing Act 2020 if found guilty of a grave crime and neither a community order nor a DTO is suitable.
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5.12 Long term detention under s 250 ‘grave crimes’
These cases may be sent for trial to the Crown Court or committed for sentence only. It is possible that, following a guilty plea, a two year detention order may be appropriate as opposed to a sentence of long term detention to account for the reduction
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5.14 Summary
This section explored:
* The principle aims of the youth justice system- preventing offending and having regard to youth welfare, as stated in the Sentencing Children and Young People: Definitive Guideline.
* The relevant age for the purpose of sentencing being the date of conviction.
* Youths can be remitted back to the youth court for sentencing if the powers of the adult magistrates’ court are not appropriate.
* Youths can be committed to the Crown Court for sentencing where they are charged with certain serious offences.
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5.14 Summary
This section also considered the different sentences available to youths both in the summary
courts and the Crown Court.
Community order are called Youth Rehabilitation Orders.
There are also referral orders which must be made in some instances.
The limit in the Youth court is two years DTO.
The Crown Court can impose lengthier custodial terms but these are reserved for the most serious
of cases
