Chapter 8: Youths Flashcards
1 Youth court - overview
1.1 Introduction
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’).
1.1 Introduction
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.
1.2 Age of criminal responsibility
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
Juvenile
A person who is under the age of 18.
Adult
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.
Child
The Children and Young Persons Act 1933 s.107 defines a ‘child’ as a person under the age of 14 years old
Young Person
The Children and Young Persons Act 1933 s.107 defines ‘young person’ as a person aged between 14 and 17 (inclusive).
Persistent Young Offender (PYO)
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)
1.3 Court process for youths
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.
1.3 Court process for youths
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.
1.4 Youth court- composition and procedure
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.
1.4 Youth court- composition and procedure
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.
1.5 Persons present
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).
1.5 Persons present
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).
1.6 Parents or guardians
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).
1.6 Parents or guardians
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.
1.7 Youth court informalities
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
1.7 Youth court informalities
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
1.8 Making modifications in adult courts
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
1.8 Making modifications in adult courts
- 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
Summary
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.
Youths- arrest and detention
2.1 The police station
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
2.1 The police station
‘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.
2.2 Who should be informed of the juvenile’s arrest?
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.
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
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.
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
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.
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.
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.
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.
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
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
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.
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.
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
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
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”.
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.
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.
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.
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.
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.
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
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
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
- 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.
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.
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.
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.
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.
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’);
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’);
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.
