Criminal slides part 6

Question 1

If D is unhappy with the decision of the magistrates court, what is the first thing they need to consider?

Answer 1

Whether the mags have made an error which they themselves can correct.

Question 2

What power do the mags have to correct themselves?

Answer 2

They can vary a sentence or set aside a conviction if its in the interests of justice to do so.
Commonly known as the “slip rule”.

Question 3

What is the slip rule?

Answer 3

Case law has made it clear that it is a power to rectify mistakes in law and procedure, whether at trial or sentencing, and is most likely to be appropriate (and to succeed) where all parties agree that a mistake was made.
It is not intended to permit a defendant to argue that the magistrates’ decision on their case was wrong - that is a matter for an appeal.

Question 4

How do you get mags to correct a mistake they’ve made?

Answer 4

-You can apply
OR
-They’ll do it themselves.

Question 5

When might a finding of guilt be set aside by the mags?

Answer 5

• legal adviser provided the magistrates with incorrect legal advice; or
• defendant did not attend for trial and no explanation for the defendant’s absence was available at the time. The defendant was therefore tried in their absence and found guilty. A few days later the defendant attends court with a medical certificate stating that an emergency hospital admission on the day of trial was the reason that the defendant was not fit to attend court. In these circumstances it would clearly be in the interests of justice that the conviction is set aside.

Question 6

What are the three ways a defendant can challenge a magistrates decision?

Answer 6

a) Appeal to the Crown Court, by way of re-hearing;
b) Appeal to the High Court, by way of case stated; or
c) Application to the High Court for judicial review of the decision.

Question 7

Where the defendant complains that the magistrates made an error of fact or mixed fact and law, what appeal route should they take?

Answer 7

Appeal to the crown court.

Question 8

Where the defendant complains that the magistrates made an error of law or acted in excess of their jurisdiction, what appeal route should they take?

Answer 8

Should appeal by way of case stated.

Question 9

Where the defendant alleges unfairness, bias or procedural irregularity, what appeal route should they take?

Answer 9

judicial review of the decision.

Question 10

What right does a D have to appeal to the crown court?

Answer 10

A d has an automatic right so it does not require leave.
They have this right if:
-pleaded guilty and appealing against sentence
OR
-found guilty after trial and appealing conviction or sentence.

Question 11

Can the prosecution appeal to the crown court?

Answer 11

No, they can only use case stated or judicial review.

Question 12

What sentences can the crown court pass if an appeal is heard from the mags court?

Answer 12

They can pass any sentence that the mags could have passed, including more severe sentences.

Question 13

What is the procedure for appealing to the crown court?

Answer 13

Notice of appeal must be lodged within 15 business days of sentence,irrespective of whether the appeal is against conviction or sentence. The notice of appeal must be served on the magistrates’ court and the prosecution. It must specify the following (CrimPR Pt 34.3):
• The conviction, sentence, order or decision which the appellant wishes to appeal, including the court and date of this.
• Summarise the issues.
• State whether the magistrates’ court has been asked to reconsider its decision (under s.142 MCA 1980) or why this is not applicable.
• List the parties on whom the appeal notice has been served.
Part 34 of the Criminal Procedure Rules sets out the procedural requirements.
If the Notice is served outside the 15 business day limit it must be accompanied by an application for an extension of time, with reasons for the delay (Pt 34.2).

Question 14

How does the hearing of an appeal from mags to crown court take place?

Answer 14

The appeal is by way of a re-hearing. A conviction appeal will proceed in precisely the same way as the original trial, with speeches, witnesses giving live evidence and any relevant submissions. Parties are not limited to the evidence that was called during the trial. Importantly, the information (the written charge on which the appellant was convicted) cannot be amended by the Crown Court. The appeal will be heard by a judge of the Crown Court and two lay magistrates. Exceptionally, the court can proceed with just one lay justice if the hearing of the appeal might otherwise be unreasonably delayed. At a sentence appeal the hearing proceeds as if it is the original sentence hearing, with the facts presented and mitigation heard.

Question 15

Can you get bail when appealing from Mags to crown?

Answer 15

Bail pending appeal can be applied for in the magistrates’ court (s.113 MCA 1980). If refused an appellant may apply for bail from the Crown Court. Under the Bail Act 1976 there is no right to bail pending appeal.

Question 16

How do you cancel an appeal to the crown court?

Answer 16

You can abandon it at any time. Once abandoned, the crown court has no power to vary the mag’s decisions.

Apellant needs to give notice in writing to the mags court, crown court and prosecution.

If the appellant fails to attend and is not represented, the appeal is treated as abandoned. If they fail to attend and they are represented, the appeal will go ahead. Permission from the Crown Court is required to abandon once the hearing has started.

Question 17

What can the crown court do with an appeal?

Answer 17

It can:
• confirm, reverse or vary the decision appealed against or any part of it;
• remit the matter with its opinion to the magistrates;
• make any other order which the court thinks is just, so long as they exercise only the power the magistrates could have.

Question 18

What costs orders are available to the crown court for appeals from mags court?

Answer 18

A successful appellant may be awarded a defence costs order. An unsuccessful appellant may be required to pay the prosecution’s costs (sections 16(3) & 18(1)(b) Prosecution of Offences Act 1985 and CrimPR Pt 45.6). Where an appeal is abandoned costs can be awarded against the appellant but in practice this usually occurs only where the notice of abandonment is served within 24 hours of the appeal hearing or on the day itself.

Question 19

where is an appeal by way of case stated heard?

Answer 19

The high court

Question 20

What is an appeal by way of case stated?

Answer 20

This is an appeal to the high court on the basis that a decision made was wrong in law or excess of jurisdiction

the D applies for the opinion of the court, it takes the form of a question about a decision of law or procedure.

Question 21

When is an appeal by way of case stated not appropriate?

Answer 21

When there is a matter of FACT disputed.

Question 22

How is an appeal by way of case stated dealt with procedurally?

Answer 22

Its dealt with like a civil matter.

Question 23

Who can appeal by way of case stated?

Answer 23

Both prosecution and defence.

Question 24

What is the time limit to appeal by way of cast stated?

Answer 24

The deadline is 21 days from the date of the decision sought to be appealed, save that: where sentence is adjourned following conviction the date of decision is deemed to be the date of sentence, even where conviction is being appealed.

Question 25

Why would mags refuse an appeal by way of case stated?

Answer 25

If its vexatious

Question 26

What is judicial review?

Answer 26

Judicial review is the means by which the High Court (again the Divisional Court of the QBD) polices inferior tribunals and public bodies. The principal grounds where a review can be applied for are - error of law on the face of the records (ie an error disclosed by the court records), excess of jurisdiction and a breach of natural justice. The latter has been widely interpreted and includes matters such as the prosecution failing to disclose a statement of a witness that might assist the defence, the magistrates failing to grant an adjournment to allow a witness to attend and failing to give the defence adequate time to prepare their case.

Question 27

Who can apply for judicial review?

Answer 27

both prosecution and defence.

Question 28

When should an application for judicial review be made?

Answer 28

Promptly and in any event within 3 months after grounds arose.

Question 29

What is the consequence of not lodging an application for judicial review promptly?

Answer 29

Even if its within 3 months, the court could reject it.

Question 30

Who has the power to grant bail to D’s appealing under judicial review?

Answer 30

The high court

Question 31

How do you appeal a decision made by the crown court on an appeal from the mags?

Answer 31

Judicial review

Question 32

How do you appeal a decision made by the high court on judicial review?

Answer 32

You appeal to the Supreme Court.

Question 33

How do you decide between case stated or judicial review?

Answer 33

• The normal route where it is alleged that there has been a misdirection or an error of law is by way of case stated;
• It would be wrong to seek judicial review where case stated was appropriate, merely in order to avoid the more stringent time-limit;
• However, judicial review is more appropriate where there is an issue of fact to be raised and decided which the justices did not decide themselves;
• Judicial review may also be appropriate where it is alleged that there has been unfairness or bias in the conduct of the case by the justices.

Question 34

Whats the slip rule in the crown court?

Answer 34

It allows the court to rectify mistakes, HOWEVER, it is only to sentences and orders e.g. driving bans.

Question 35

Who can use the slip rule in the crown court?

Answer 35

The judge who passed the sentence must be the judge who makes the variation.

Question 36

When can the crown court not use their slip rule?

Answer 36

• For rectifying convictions

- When appeal has been granted by court of appeal.

Question 37

What appeals does the court of appeal hear?

Answer 37

Appeals from the crown court for the following:

a) Appeals against conviction on indictment;
b) Appeals against sentence passed following conviction on indictment;
c) Appeals against sentence passed on committal for sentence;
d) References by the Attorney-General of unduly lenient sentences, for offences triable only on indictment and some either-way offences specified by the Home Secretary;
e) References by the Attorney-General for opinions on points of law following acquittal on indictment;
f) References by the Criminal Cases Review Commission;
g) Prosecution appeals against terminatory rulings;
h) Appeals against rulings made at preparatory hearings in serious fraud cases.

Question 38

Is leave required to appeal to the court of appeal?

Answer 38

Yes, Appellants from the Crown Court need to convince a single judge that their appeal is arguable on the merits before it can proceed to an oral hearing before a 2 judge court (sentence appeals) or a 3 judge court (conviction appeals). If leave if refused by the single judge a party may renew an application for leave orally before the relevant panel.

Question 39

What is the time limit for the notice of appeal for appeal in the court of appeal?

Answer 39

The notice of appeal must be served within 28 days of the conviction, in conviction appeals, and within 28 days of sentence, in sentence appeals. This time limit can be extended - the extension must be applied for when serving Form NG, giving reasons for the delay.

Question 40

What is the duty of counsel when appealing from the crown court to court of appeal?

Answer 40

They need to draft advice and grounds in one document.

This document needs to identify transcripts, and helps counsel ‘perfect’ their grounds.

Question 41

When is leave to appeal from the crown court not needed?

Answer 41

If the judge give a certificate that the case is fit for appeal. This is unusual but would be if the judge considers they may have made an error.
e.g. where a judge has to interpret a new piece of legislation and they can see an equal force of the losing parties argument.

Question 42

When are transcripts used in appeals from the crown court?

Answer 42

Transcripts are ordered by the Registrar if they are required in order to resolve the appeal.
For example, if one of the Grounds of Appeal is that the judge made an incorrect ruling on a matter of law counsel should, in the Advice, provide the date and time that the judge gave that ruling. The Registrar can then obtain the transcript of the ruling so that the Court of Appeal can determine exactly what was said.
In conviction cases the summing up and proceedings up to and including the verdict are usually obtained as a matter of course. In sentence cases, the sentencing remarks are obtained and any prosecution opening of facts where the sentence takes place following a guilty plea.

Question 43

What is “perfecting grounds” in appeals from the crown court?

Answer 43

When transcripts are received counsel will be sent a copy and invited to ‘perfect’ grounds within 14 days ie adding references to the transcripts to support the arguments advanced or reconsidering the grounds and perhaps amending / deleting or advancing new ones in light of the transcripts.
If counsel does not wish to perfect, they should notify the Registrar.
Perfected grounds should be in a fresh document and clearly marked as such

Question 44

What happens if counsel decide the appeal is no longer arguable? (From crown court)

Answer 44

counsel should advise the appellant’s solicitors of this in writing. This advice should not be sent to the Registrar but the Registrar should be informed.

Question 45

Can the respondent respond to an appeal from the crown court?

Answer 45

Yes, This would be granted by the registrar or a single judge when applying for leave to appeal.

Question 46

How do parties get leave to appeal from the crown court to the court of appeal?

Answer 46

Usually the application, including any bail application, will be considered by the Court of Appeal on the papers alone, without oral argument, by one judge sitting alone. The single judge will consider the merits of the application for leave and come to a decision, giving reasons. The single judge may:
• grant the application wholly or in part;
• refuse the application;
• refer it to the full Court of Appeal without granting leave.

Question 47

What happens if leave to appeal from the crown court to the court of appeal is refused?

Answer 47

If leave is refused by the single judge, or granted on some grounds but not others, the appellant can renew the application for leave to appeal. The appellant must serve the relevant form on the Court of Appeal within 10 business days of receipt of the notification of the single judge’s decision. This can be extended in a similar way to the application for leave. A renewed application for leave to appeal will be heard orally by the full court of 2 or 3 judges. No representation order is available but counsel may appear either privately or on a pro bono basis. If they intend to do so they must notify the court in writing as soon as possible. Notification of the single judge’s decision, is on Form SJ. It may indicate that the single judge found the application to be wholly without merit and that the full court should consider a ‘loss of time order’ if the application is renewed.

Question 48

What is a referral to the full court in appeals from the crown court?

Answer 48

When seeking leave to appeal, Rather than sending a case to the single judge, the Registrar can refer a case to the full court instead, effectively bypassing the single judge and asking the full court to decide the application for leave.
This power is used where:
• there is an unlawful sentence which must be amended; or
• there is a novel point of law.
It may also be used where the matter requires expedition eg a seriously ill or elderly appellant.
The single judge may also refer to the full court if the single judge identifies an issue requiring the full court’s attention.

Question 49

What are the common grounds for appeal from crown court to court of appeal?

Answer 49

Common grounds for an appeal against conviction include, but are by no means limited to:
• Wrongful admission / exclusion of evidence;
• Wrongful rejection of a submission of no case to answer;
• Wrongful withdrawal of issues from the jury;
• Misdirection on law / facts in the course of summing up;
• Conduct of the trial judge;
• Inconsistent jury verdicts;
• Fresh evidence;
• Defects in the Indictment;
• Conduct of lawyers.
Common grounds for an appeal against sentence include:
• Wrong in law;
• Wrong in principle;
• Manifestly excessive;
• Legitimate expectation;
• Judge fails to take account of relevant matters;
• Judge takes account of improper considerations;
• Unjustified disparity between co-defendants or a failure to distinguish between offenders.

Question 50

Why would you appeal a guilty plea?

Answer 50

The most common such ground is if the guilty plea was entered following a legal ruling by the trial judge which left no option but to plead guilty. If that ruling is itself appealed and held to be incorrect the resultant guilty plea will be quashed.
Appeals can be mounted on the basis of incorrect legal advice, although it would be more usual to apply first to the Crown Court to vacate the plea. If the advice is correct and the plea was entered of the defendant’s own free will then it is unlikely to be interfered with – by either court. This highlights the importance of advising a client accurately on plea, ensuring that they know it is their choice how to plead and getting an endorsement that the client has been so advised and makes the decision freely.

Question 51

How do parties get representation when appealing from the crown court to the court of appeal?

Answer 51

The Registrar or single judge will usually grant a representation order for junior counsel when leave is granted. If work is necessary it may be extended to cover a solicitor. The Registrar will send a brief to counsel.
The respondent is not usually represented at a sentence appeal but will be on a conviction appeal.

Question 52

How are skeletons used in appeals from the crown court?

Answer 52

A skeleton must be served where the appeal notice does not sufficiently outline the grounds. In practice, a skeleton is most commonly needed in cases involving a novel point of law or complex issues are raised which require additional input from counsel. If skeletons are to be served the appellant must serve theirs 21 days prior to the hearing and the respondent 14 days before the hearing, unless otherwise directed. Authorities are to be used sparingly and must be justified.

Question 53

Can the appellant be present at the appeal from the crown court?

Answer 53

As a general rule, the appellant is entitled to be present, if the appellant wishes, at the hearing of the appeal. There are some exceptions if the appellant is in custody, whereby the court’s permission is required

Question 54

What is the test on appeal from crown court?

Answer 54

If leave is granted (on paper or at an oral hearing) the court must proceed to consider the merits of the appeal.
• In an appeal against conviction the court can allow an appeal only if they think that the conviction is unsafe (s.2 Criminal Appeal Act 1968).
• In an appeal against sentence the appeal can be allowed if the court thinks the defendant should have been sentenced differently (s.11(3) Criminal Appeal Act 1968).

Question 55

What powers does the court of appeal have for appeals from crown court?

Answer 55

Conviction
• Quash the conviction.
• If it appears to the court that the interests of justice so require they may order the appellant to be retried.
• The court may also substitute a verdict of guilty for an alternative offence if:
o the jury would have been able to convict of the alternative offence at trial; and
o the jury must have been satisfied of facts which proved him guilty of the offence.
• The sentence may need to be amended to reflect this.
Sentence
• Quash any sentence or order which is the subject of the appeal; and
• In place of it pass any such sentence or make such order as they think appropriate, but which the court below had power to pass or make; and
• They must ensure that, taking the case as a whole, the appellant is not more severely dealt with on appeal than he was in the court below.

Question 56

What is a loss of time order?

Answer 56

The Court of Appeal can direct that some or all of the time spent in prison between the date of lodging the appeal and the date of its dismissal may be ordered not to count towards the appellant’s sentence. This is known as a ‘loss of time’ order.
This may be imposed where the application is considered to be wholly without merit. It can be made by the single judge considering the paper application for leave, but this is unusual in practice. It is most likely to be made by the full court following refusal of a renewed application for leave, especially, but not only, where the single judge has marked the appropriate box on Form SJ (described previously).

Question 57

Can fresh evidence be used in appeals from the crown court?

Answer 57

Yes, the Court of Appeal may, if they think it necessary or expedient in the interests of justice:
a) order the production of any document, exhibit or thing connected with the proceedings if it is necessary for the determination of the case;
b) order any witness to attend for examination (regardless of whether they were called in the original proceedings);
c) receive any evidence which was not adduced in the proceedings from which the appeal lies.
In considering whether to receive any evidence the court will have regard to the following, as per s.23(2). This is not an exhaustive list:
a) Whether the evidence appears to be capable of belief;
b) Whether it appears that the evidence may afford any ground for allowing the appeal;
c) Whether the evidence would have been admissible in the proceedings from which the appeal lies, on an issue which is the subject of an appeal;
d) Whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.

Question 58

What is reference on a point of law following acquittal?

Answer 58

The Attorney-General (AG) may ask for the opinion of the Court of Appeal on a point of law where the defendant was acquitted following trial on indictment. This does not affect the acquittal – the acquittal stands whatever the Court of Appeal’s decision.
The power is intended to clarify the law. However, the defendant is entitled to be represented at the hearing.
The Court of Appeal can refer to the Supreme Court if it sees fit or where either party requests this.

Question 59

What happens if the attorney general thinks the court was too lenient with a sentence?

Answer 59

The Attorney General (AG) may refer a case to the Court of Appeal where the AG considers the sentence imposed to be ‘unduly lenient’. The AG can only refer cases for offences which are triable only on indictment or specified in the Criminal Justice Act 1988 (Reviews of Sentencing) Order 2006.

It is a matter for the AG to consider whether leave should be sought for a reference and the time limit to do so is 28 days. If leave is granted the Court of Appeal will proceed according to the facts before the sentencing judge.
A sentence can be increased under the reference procedure if it is found to be ‘unduly lenient’. Some discount will, however, be given for ‘double jeopardy’. This means compensating a defendant for having to wait before knowing if their sentence will be increased.

Question 60

Who is the criminal cases review commission?

Answer 60

An independent body that haw the power to refer, at any time, any conviction on indictment or sentence to the court of appeal or to the crown court (if summary).

Question 61

How does the prosecution appeal rulings that bring cases to an end?

Answer 61

prosecution appeals against any terminatory ruling made in the course of a Crown Court trial on indictment ie those rulings that would otherwise bring the case to an end. The provision does not apply to rulings to discharge the jury. The appeal is to the Court of Appeal.
There are provisions providing a similar appeal in respect of evidentiary rulings which significantly weaken the prosecution case but these are not yet in force and so not required for your assessment.

Question 62

What are the three main requirements for a prosecution to appeal against a terminatory ruling?

Answer 62

There are three main requirements for such an appeal to take place.
• The ruling must be made before summing up;
• An acquittal agreement must be given by the prosecution;
• This means that the prosecution must give an assurance to the court and the defendant that if leave to appeal is refused and the appeal abandoned before it is decided by the Court of Appeal, the defendant will be acquitted on that count(s).
• The ruling must not be appealable to the Court of Appeal by other means.

Question 63

What is the procedure for the prosecution to appeal against terminatory rulings?

Answer 63

See Part 38 CrimPR
There are various ways to proceed where an appeal may be appropriate.
a)Prosecution counsel should notify the judge that they wish to appeal immediately; or
b)Ask for a short adjournment if they want to speak to the CPS lawyer;
c) Any adjournment will usually be until the next business day, when notification must be given;
d)Thereafter, counsel should serve written notice of appeal on the court, Registrar and defendant;
e)The prosecution has five business days to serve written notice in non-expedited cases or the next business day in an expedited appeal case. Expedited cases will be dealt with by the Court of Appeal in a matter of days without the need for the jury to be discharged.
Alternatively, the prosecutor can apply orally to the trial judge for leave to appeal:
• The trial judge will hear representations from the defence on the same day as the application unless it is in the interests of justice to allow further time for them to respond;
• The trial judge will decide if there is a real prospect of success on appeal.
The prosecution has a second chance if their application to the trial judge fails in that they can still lodge notice of appeal and proceed to the Court of Appeal.
Some examples of rulings which would be appealable under this section are:
• Staying proceedings as an abuse of the court’s process;
• Rulings of no case to answer;
• Evidential ruling which leaves the prosecution with no evidence to offer.

Question 64

What is the rule on appealing a decision in the court of appeal?

Answer 64

You can appeal to the Supreme Court but it is not a RIGHT to appeal.

It would need to be certified that the appeal was for a point of law of general public importance.

Application for leave to appeal must be made no more than 28 days after the court of appeals decision.

Question 65

If a young person commits an offence they go through the youth justice system. What are the two aims of the youth justice system?

Answer 65

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’) .

Question 66

When a person is under 18 under what circumstances will they appear in the mags court?

Answer 66

A person under the age of 18 would make their first appearance here if and only if jointly charged with an adult. It must try all summary only matters and may try any either-way matters.
Otherwise in the youth court.

Question 67

who is a child?

Answer 67

Child- The Children and Young Persons Act 1933 s.107 defines a ‘child’ as a person under the age of 14 years old.

Question 68

Children under the age of ten cannot be convicted of an offence. There is an irrebuttable presumption that they are not criminally responsible prior to this age. Is this true?

Answer 68

Yes

Question 69

If the accused is under 15 who needs to be at court with them?

Answer 69

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).

Question 70

Give a few ways in which the youth courts are informal

Answer 70

or 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;
• 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 – eg ‘finding of guilt’ is a conviction and ‘order made on a finding of guilt’ is a sentence. This terminology also applies to proceedings against youths appearing in the adult magistrates’ court but not in the Crown Court.

Question 71

When will a youth enter a plea?

Answer 71

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.

Question 72

Where will a youth be tried?

Answer 72

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.

Question 73

There are certain situations where a youth must be tried in the Crown Court and not a youth court what are those?

Answer 73

a) Youth charged with homicide (murder or manslaughter);
b) Youth charged with a firearms offence where, if convicted, the youth would be subject to a mandatory minimum sentence under s.51A of the Firearms Act 1968 or using someone to mind a weapon under s.29(3) of the Violent Crime Reduction Act 2006;
c) Youth charged with an offence to which s.91 PCC(S)A 2000 applies and the youth court has determined that, if convicted, a sentence beyond its powers should be available (thus it is a ‘grave crime’);
d) Youth charged with a specified offence under s.224 of the Criminal Justice Act 2003and it appears to the court that if the youth is found guilty or pleads guilty the criteria for imposing an extended sentence under s.226B CJA 2003 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.

Question 74

What are ‘grave crimes’?

Answer 74

Section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 provides for the punishment of youths convicted on indictment of certain serious offences, known as ‘grave crimes’. Section 91defines 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.

Section 91 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 element.

Question 75

IF youth offender is considered dangerous are sent to crown court. where does this apply?

Answer 75

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.224 of the Criminal Justice Act 2003; 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.226B CJA 2003 would be met.

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.226B are similar to adults, but not quite the same. They are:

a) The youth is convicted of a specified offence (as per s.224 CJA 2003);
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.

Question 76

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. What are some of the factors that should be considered?

Answer 76

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;
c) 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;
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.

Question 77

What are the principles of the youth justice system?

Answer 77

The sentencing court must have in mind the principal aims of the youth justice system namely to:

• prevent offending; and
• have regard to the youth’s welfare.

Question 78

What sentences can be passed in the youth courts?

Answer 78

· Absolute discharge

· Conditional discharge

· Fines- up to £1,000 aged 14 and over, up to £250 under 14, or maximum for offence if less

· Referral order

· Reparation order

· Youth rehabilitation order

· Detention and training order

· Parenting order

· Parental bind over

Question 79

what are the three powers of committal to the Crown Court for sentence apply to youths?

Answer 79

• Youth pleads guilty to, or is found guilty of, an offence to which s.91 PCC(S)A 2000 (grave crimes) applies and the court considers a sentence in excess of two years’ detention is required (s.3B PCC(S)A 2000);
• Youth pleads guilty to, or is found guilty of, a specified offence for which an extended sentence under s.226B CJA 2000 (dangerous offenders) is required (s.3C PCC(S)A 2000);
• Youth pleads guilty to an offence to which s.91 (grave crime) applies and the court has already sent the youth to the Crown Court for trial for one or more related offences; it may commit the youth to the Crown Court in respect of the new s.91 offence (s.4A PCC(S)A 2000).

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.

Question 80

how do DTOs operate and when they can be used?

Answer 80

how DTOs operate and when they can be used. In essence:

• They 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;
• Half the time is spent in custody, with the remaining period under supervision in the community;
• 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 Young 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.

If a defendant is aged 17 at the date of conviction but turns 18 by the time of sentencing, the sentence imposed will be a DTO as opposed to detention in a Young Offenders Institution, which is the usual custodial sentence for those aged between 18 and 21.

Question 81

What are the non-custodial sentence?

Answer 81

The principal ones are:

• the youth rehabilitation orders (no statutory minimum, maximum 36 months); and
• referral orders (minimum 3 months, maximum 12 months).

Reparation orders are also commonly used.

The youth court also has the power to make certain orders against parents, e.g. binding the parents over or making a parenting order.