Youth (W19)

Question 1

D24.2 - Terminology

Answer 1

• Adult: any person aged 18 or over. In the context of sentencing, is sometimes used for an offender aged 21 and over because that is the age that an offender becomes liable to imprisonment.
• Child: a person under 14.
• Young person: someone aged 14-17 inclusive

Question 2

D24.5 - Age of criminal responsibility

Answer 2

There is an irrebuttable presumption that a person who is under the age of 10 cannot be guilty of a criminal offence.

Question 3

D24.8 - Allocation (mode of trial)

Answer 3

• Normal rules do not apply where accused is under 18
• Most children and young people are tried and sentenced in youth courts.
• Youth courts are magistrates courts and youth court is merely a form of summary trial.
• The youth court has jurisdiction to try offences which in the case of an adult would be triable only on indictment (with the exception of homicide and certain firearms offences).
• Youth does not have a right to elect Crown Court trial like an adult does - the most they can do is make representations for or against staying in the youth court.

Question 4

D24.8 - Summary of where a child or young person may be tried

Answer 4

(a) must be tried in the Crown Court if charged (i) with homicide, or (ii) with certain offences to which mandatory minimum sentence provisions apply.
(b) may be tried in the Crown Court if charged (i) with an offence to which PCC(S)A 2000 s.91 applies, or (ii) with an offence which falls within the ambit of the dangerous offender provisions of the CJA 2003, (iii) alongside an adult co-accused
(c) a child or young person may be tried in an adults magistrates court if charged alongside an adult accused.

Question 5

D24.12 - Exclusion of public

Answer 5

• The public are excluded from the courtroom of a youth court.
• The only persons permitted in a youth court are:
  (a) members of the court and court officials;
  (b) parties to the case before the court and their legal representatives (lawyers cannot enter the court room if a case they are appearing in is not being dealt with at that time)
  (c) witnesses and other persons directly concerned in that case (witnesses are allowed to remain in court once they have given evidence)
  (d) bona fide representatives of news gathering or reporting organisations
  (e) anyone else directly involved in the case (e.g. probation officers and social workers)
  (f) such other persons as the court may specially authorise to be present.

The position is different if the child or young person is appearing as an accused or witness in the adult magistrates or Crown Court. The public has a right to be present in these courts unless the court takes the exceptional step of sitting in private.

Question 6

D24.16 - Attendance of parent or guardian

Answer 6

• If the accused is under 16, the court must (and if the accused is 16 or 17, the court may) require a parent or guardian to ‘attend at the court during all the stages of the proceedings, unless and to the extent that the court is satisfied that it would be unreasonable to require attendance, having regard to the circumstances of the case.’
• ‘Guardian’ is defined as any person who, in the opinion of the court, has for the time being ‘the care of the child or young person.’

Question 7

D24.17 - Course of the trial in a youth court

Answer 7

• essentially the same as in an adults magistrates
• the words ‘conviction’ and ‘sentence’ are not used, but replaced by ‘findings of guilt’ and ‘order made on a finding of guilt’. This applies to proceedings in the youth court and the adult magistrates but not on indictment.
• procedure in the youth court is intended to be less formal. The accused sits in a chair, not a dock, and usually has a parent/guardian sitting nearby. The accused and young witnesses are addressed by their first names, and the oath taken by the witnesses is to ‘promise’ not ‘swear’ to tell the truth.
• magistrates talk directly to the child or young person and their parent/guardian

Question 8

D24.24 - Plea before venue procedure for children and young people

Answer 8

• Usual plea before venue procedure does not apply where a child or young person is charged with an offence such as homicide or other specified offence. However, a plea before venue hearing must take place where there is a possibility of the child or young person being tried in the Crown Court because he or she is charged alongside an adult or where the offence is one to which s.91 PCC(S)A 2000 applies.
• In those cases, the child or young person is invited to indicate an intention to plead guilty or not guilty. If the accused indicates an intention to enter a guilty plea, a guilty plea is deemed to have been entered at that point.
• The magistrates then proceed to sentencing; if the offence is one to which s.91 applies, the magistrates may commit the offender to the Crown Court for sentence under the PCC(S)A 2000 if they take the view that their sentencing powers are insufficient.
• If the accused enters a not guilty plea, the magistrates proceed to allocation.
• Therefore, if the case is one to which s.91 applies, the magistrates go on to consider whether it ought to be possible to impose a sentence of detention under that section if the accused is found guilty of it.
• If the case is one where the child or young person is charged alongside an adult who is to be tried in the Crown Court, the magistrates go on to consider whether it is necessary in the interests of justice for the child or young person to be sent to the Crown Court as well.

Question 9

D24.25 - Plea before venue in absence of the child/young person

Answer 9

• Plea before venue procedure can be determined in the absence of a child or young person who is legally represented and the court considers that, because of the accused’s disorderly conduct before the court, it is not practicable for proceedings to be conducted in his/her presence, and they should go on in their absence.
• In such cases, the legal representative is invited to enter a plea on behalf of the accused
• Proceedings can be adjourned. Where the accused is present, the adjournment may take the form of a remand, either in custody or on bail.

Question 10

D24.46 - where a child or young person is charged with an adult

Answer 10

• s.51(7) applies where an adult is sent for trial under s.51 and a person under 18 appears before the court charged jointly with an adult who has been sent for trial for the same or a related offence.
• It provides that the court shall, ‘if it considers it necessary in the interests of justice to do so’, send the child or young person to the Crown Court for trial for the indictable offence. The child or young person may also be sent for any related offences (though if a related offence is a summary offence this provision will only apply if it is punishable with imprisonment or involves obligatory or discretionary disqualification from driving)

Question 11

D24.47 - Determining allocation

Answer 11

• Assuming the child/young person indicates an intention to plead not guilty, the court will invite representations from prosecution and defence on the issue of whether or not it is ‘necessary in the interests of justice’ to send them to the Crown Court for trial.
• The court should bear in mind that those who are under 18 should, wherever possible, be tried in a youth court, which is designed for their specific needs.
• When an accused under the age of 18 is jointly charged with an adult, an exercise of judgement is called for by the youth court when assessing competing presumptions in favour of (i) joint trial of those jointly charged, (ii) the trial of young defendants in the youth court. Factors relevant will include maturity of the young defendant, comparative culpability in relation to the offence, and the previous convictions, and whether the trial can be severed without either injustice or undue inconvenience to witnesses.

Question 12

D24.48 - Sentencing guidelines for children and young people

Answer 12

• 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/young person is jointly charged with an adult.
• The court should conclude that the child/young person be tried in the youth court unless it is in the interests of justice for there to be a joint trial.
• Factors to be considered:
  (a) whether separate trials will cause injustice to witnesses in the case as a whole (bearing in mind the possibility of video testimony)
  (b) the age of the child or young person
  (c) the age gap between the child/young person and the adult
  (d) the lack of maturity of the child/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
  (f) the lack of previous convictions recorded against the child or young person
• The court should also bear in mind that youth courts have a general power to commit for sentence following conviction. In appropriate cases, this may permit the same court to sentence adult and young offenders who have been tried separately.

Question 13

D24.49 - No power to remit to youth court

Answer 13

The Crown Court has no power to remit a child/young person back to the youth court for trial, even if for example when tried together, the adult pleads guilty and the young person will be tried alone in the Crown Court.

Question 14

D24.50 - Procedure where child or young person is not sent with an adult to the Crown Court for trial

Answer 14

• If the child or young person indicates a guilty plea, the mags will consider whether their sentencing powers are adequate. These powers are to make any one of the following orders:
  (a) absolute discharge
  (b) conditional discharge
  (c) a fine (up to £1,000 for an offender who has reached the age of 14, up to £250 for one who has not)
  (d) requiring the offender’s parents to enter into a recognizance to keep proper control of them.
• An adults magistrate court may also make a referral order.
• If these powers are not appropriate, the justices will remit the child or young person to the youth court to be sentenced.
• If the case is one where, in the youth court, a referral order would be mandatory, an adults magistrates court may, but is not obliged to, remit the case to the youth court.
• if the child/young person pleads not guilty, the adult magistrates may either try the accused or remit them for trial to the youth court. In the absence of good reason to the contrary (e.g. the prosecution wanting to offer no evidence), the matter should be remitted.

Question 15

D24.51 - Procedure where adult co-accused is tried summarily

Answer 15

• Where the child or young person is jointly charged with an adult to be tried summarily
• If the child/young person indicates a plea of NG at the plea before venue hearing, or is subsequently found guilty, the magistrates will remit them to the youth court for sentence if the sentences which the adults court can impose are inappropriate.
• If the adult pleads guilty and the child/young person pleads NG, the magistrates may try them or else remit them to the youth court for trial. It is most likely they will remit.
• Where the child or young person is charged with aiding and abetting the adult or the other way round, the adult magistrates has a discretion to try them both if they plead NG.

Question 16

D24.52 - Where the PCC(S)A 2000, s.91 applies and there is an adult co-accused

Answer 16

• There will be cases where a child or young person and an adult are charged with an offence to which s.91 applies, and so ss.51(7) and 51A(2) are both relevant.
• If the adult is sent to the Crown Court for trial, the question whether a sentence under s.91 would be appropriate in the event of the child/young person being convicted will be highly relevant to the decision whether to send them to the Crown Court for trial.
• As both defendants will be appearing in the adult magistrates, it will be that court which takes the decision on where the child/young person is to be tried. The adult court has no power to remit the child/young person to the youth court to decide the mode of trial.

Question 17

D24.66 - Determining age

Answer 17

• Where a person apparently under 18 is brought before a court, the court is to make ‘due inquiry’ as to the person’s age and must take into account such evidence on the matter as may be forthcoming.
• However, any order or judgment of the court is rendered invalid by subsequent proof that the person’s age was incorrectly stated.
• The court is entitled to accept what the offender says on the matter, although in cases of doubt it may ask for further inquiries to be undertaken.
• For the purposes of the PCC(S)A 2000, a person’s age ‘shall be deemed to be that which it appears to the court…after considering any available evidence’
• In a case where there is a real doubt as to the age of the accused, the proper course is to require an age assessment to be conducted.

Question 18

D24.6 - Court of first appearance

Answer 18

• The first court appearance by a child/young person in respect of an alleged offence will be in the youth court unless the case is an exceptional one where the first appearance is in the adult magistrates:
  (a) the child or young person is jointly charged with an adult; or
  (b) the child or young person is charged with aiding or abetting an adult to commit an offence or vice versa, or
  (c) the child or young person is charged with an offence which arises out of circumstances which are the same as or connected with those which resulted in the charge faced by an adult accused.
• It will usually be appropriate for the child or young person to be produced in person at court to ensure proper engagement.

Question 19

D24.19 - Determining place of trial of children and young people

Answer 19

• Most will take place in the youth court.
• There are 5 circumstances in which the trial of a child or young person either may or must take place in the Crown Court:
  (a) where the child or young person is accused of homicide (i.e. murder or manslaughter) the case must be heard in the Crown Court; or
  (b) where the child or young person is charged with a firearms offence where the FA 1968, s.51A applies (or using someone to mind a weapon under the VCRA 2006, s.29(3)), and had attained the age of 16 at the date of the alleged offence, the case must be heard in the Crown Court, or
  (c) where the child or young person is accused of an offence to which the PCC(S)A 2000 s.91 applies (i.e. an offence carrying at least 14 years imprisonment in the case of an adult or one specified in s.91 itself) the case may, depending on whether or not a sentence in excess of two years is likely to be appropriate, be heard in the Crown Court; or
  (d) where the child or young person is charged with a ‘specified’ offence as defined by the CJA 2003, s.224 (and so falls within the ambit of the ‘dangerous offender’ provisions), the case may be heard in the Crown Court depending on whether the accused can properly be regarded as a dangerous offender, or
  (e) where the child or young person is charged alongside an adult who is to be tried in the Crown Court, the child or young person may also be sent to the Crown Court for trial, but only if it is necessary in the interests of justice to do so.

Question 20

D24.20 - Trial on indictment

Answer 20

Magistrates Court Act 1980, s.24
‘Where a person under the age of 18 appears or is brought before a magistrates court on an information charging him with an indictable offence he shall, subject to sections 51 and 51A of the Crime and Disorder Act 1998 and to sections 24A and 24B below, be tried summarily.’

• Section 51(7) CDA 1998 deals with cases where an adult is the co-accused.
• Section 51A deals with those cases in which either a child or young person must be tried on indictment or else the magistrates have a discretion to send them to the Crown Court for trial.
• Section 51A(2) and (3) require the court to send the child/young person to the Crown Court for trial when charged with:
  (a) homicide; or
  (b) a firearms offence where there is a mandatory minimum sentence;
  (c) an offence to which the provisions of PCC(S)A 2000, s.91 apply and the court considers that it ought to be possible to sentence the accused to detention under that section in the event of being convicted; or
  (d) the offence is a ‘specified’ offence under the CJA 2003 s.224 and it appears to the court that if the accused is found guilty of the offence, the criteria for the imposition of a sentence under s.226B CJA 2003 (extended sentence for certain violent or sexual offences) would be met.

Question 21

D24.27 - Cases falling within the PCC(S)A 2000, s.91

Answer 21

• provides for the punishment of children and young people who are convicted on indictment of certain serious offences
• empowers the Crown Court to order that a child or young person be detained for a period not exceeding the minimum sentence of imprisonment which may be imposed on an adult offender for the offence in question.
• It applies only in the following cases:
  (a) where a child/young person who has attained the age of 10 is convicted of an offence which carries at least 14 years imprisonment in the case of an adult offender;
  (b) where a child/young person who has attained the age of 10 is convicted of an offender under the SOA 2003, ss.3, 13, 25 or 26.
• This provision is necessary because of the relatively limited ambit of the normal custodial sentence for young offenders, namely the DTO which is limited to a total of 24 months (12 months custody, followed by 12 months supervision)
• where the offender is under 15, a DTO can be imposed only if the child or young person is a ‘persistent offender’ and is not available at all if they are under 12.
• s.91 achieves two key objectives: (a) enables the Crown Court to pass a longer term of detention than would otherwise be available and (b) enables the Crown Court to impose a term of detention where otherwise no detention would be possible.

Question 22

D24.28 - Scope of s.91

Answer 22

• Applies where (a) a child or young person is convicted of an offence to which s.91 applies, and is then committed to the Crown Court for sentence and (b) where a child or young person is sent up to the Crown Court for trial in respect of the offence to which s.91 applies
• Therefore at plea before venue if an accused pleads NG, the magistrates must consider whether it ‘ought to be possible’ to impose a sentence under s.91
• Where a child/young person is charged with more than one offence, and s.91 applies to one or some but not all of those offences, the court may, when considering the seriousness of those offences to which s.91 applies, consider the seriousness of the combination of all offences, since they are ‘associated offences.’
• However, in the event of a conviction, the Crown Court may order long term detention only in respect of those offences to which s.91 applies.
• Where a child/young person appears before a youth court charged with a number of offences and is sent to the Crown Court in respect of some but not all of them, the youth court is not required to adjourn proceedings in respect of the other offences.

Question 23

D24.29 - Deciding allocation where s.91 applies

Answer 23

• Before deciding whether to send the case to the Crown Court or retain jurisdiction, the court should hear submissions from the prosecution and defence. However, evidence about the gravity of the offence as opposed to representations it not appropriate at this stage.
• When a youth court is deciding whether to send a child or young person to be tried in the Crown Court where s.91 applies, the court is entitled to know about any previous findings of guilt.
• Where several accused are charged together and all under 18, the court must consider the position of each one separately even if this means some being tried in the youth court and others in the Crown.

Question 24

D24.38 - Dangerous offenders: extended sentences

Answer 24

• Where the offence is a specified offence and it appears to the court that if the child or young person is found guilty of the offence, the criteria for imposition of an extended sentence would be met, the court must send the accused to the Crown Court for trial for that offence.
• Offences that come within the definition of ‘specified offence’ are listed in the CJA 2003, sch 15.
• s.226B applies where the court takes the view ‘that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences.’
• If the appropriate custodial term for the present tense is at least 4 years, the court may impose an extended sentence so that the offender is under licence, following release from custody, for an extended period, for the purpose of protecting members of the public from serious harm.

Question 25

D24.40 - Sending a young person to the Crown Court under the dangerous offender provisions

Answer 25

• There will be few cases where this is appropriate and such power should be exercised only where (a) there is sufficient information about the nature and circumstances of the offender, the offence and any pattern of behaviour of which the offence forms part, to enable the court to assess the offender as dangerous, and (b) it is in the interests of justice for the accused to be tried on indictment.
• trial on indictment is often unnecessary as the offender can still be committed for sentence.

Question 26

D24.56 - Committal for sentence

Answer 26

Three powers of committal are relevant to children and young people:

• s.3B (applies where the accused pleads guilty to or is found guilty of an offence to which s.91 applies)
• s.3C (applies where the accused pleads guilty to or is found guilty of an offence to which s.226B applies)
• s.4A )applies where the accused is sent for trial for one or more offences but also indicates a guilty plea for one or more other offences)

Question 27

D24.96 - Sentencing powers and procedure in the youth court

Answer 27

• All sentences and other orders provided by statute for use in respect of offenders under 18 are at the disposal of the youth court, except long term detention under PCC(S)A 2000, which is available only to the Crown Court.
• They are:
  (a) DTOs
  (b) fines
  (c) youth rehabilitation orders
  (d) referral orders and reparation orders
  (e) absolute and conditional discharges
• The youth court can also make ancillary orders e.g. a compensation order. The max amount of compensation that can be ordered is £5,000.
• Where the offender has been convicted of several offences, there is no limit on the aggregate amount of the compensation orders.
• The youth court is also empowered to make certain orders against the parents of a young offender, namely binding the parents over or making a parenting order.

Question 28

E15.9 - Detention and Training Orders

Answer 28

• Available to youth courts and the Crown Court in respect of offenders aged under 18, but aged at least 12, when convicted, who have been convicted of an offence punishable with imprisonment in the case of an adult.
• The offender is subject for the term specified in the order, to a period of detention and training followed by a period of supervision.
• When an offender is aged 17 at the date of conviction but is aged 18 or over when sentenced, the sentence takes effect as a DTO rather than detention in a young offenders institution.

Question 29

E15.12 - Length of DTOs

Answer 29

• The term of a DTO must be for one of the specified periods, the minimum period being 4 months and the maximum 24 months.
• In a case where the court would otherwise have imposed a DTO for 4 months but there is a guilty plea or other significant mitigation, or the offender has spent a period on remand in custody, the court cannot impose a DTO at all.
• Terms of less than 4 months also cannot be aggregated to meet the 4 month minimum.

Question 30

E15.14 - Consecutive orders and imposition of excessive term

Answer 30

• DTOs can be consecutive.
• When imposing consecutive DTOs, the youth court may exceed a total term of 6 months.
• If a term, or aggregate term, longer than 24 months is imposed, the excess is automatically remitted.
• The court must make clear whether they are imposing a DTO or a detention order under s.91

Question 31

E11.1 - Youth rehabilitation orders

Answer 31

• the appropriate community sentence for offenders aged under 18 when convicted
• involves the imposition of one or more youth rehabilitation requirements
• the court also has the power to make a YRO with (i) intensive supervision and surveillance or (ii) a YRO with fostering

Question 32

E11.2 - s.179 SA 2020

Answer 32

(2) The court must make a youth rehabilitation order unless it is of the opinion that–
(a) the offence, or
(b) the combination of the offence and one or more offences associated with it,
was serious enough to warrant the making of such an order.

(3) In forming its opinion…the court must take into account all associated offences, including any aggravating or mitigating factors.
(4) The pre-sentence report requirements apply to the court in relation to forming that opinion.
(5) The fact the court may make a YRO does not require it to do so

(6) Before making a YRO, the court must obtain and consider information about–
(a) the offender’s family circumstances, and
(b) the likely effect of a YRO on those circumstances.

Question 33

E3.1 - Referral orders

Answer 33

• an order which requires an offender under the age of 18 when convicted to attend meetings of a youth offender panel established for the offender by a youth offending team and by virtue of which the offender is required to comply for a specified period with a programme of behaviour to be agreed between the offender and the panel.
• A youth court or adult magistrates court dealing with an offender under 18 for whom it is their first conviction, is in certain circumstances required to sentence them by referral order.
• Crown Court has no power to make a referral order

Question 34

E3.2 - Requirement to refer and power to refer

Answer 34

(1) A referral order is available to a court dealing with an offender for an offence where–
(a) the court is a youth court or other magistrates’ court,
(b) the offender is aged under 18 when convicted,
(c) neither the offence nor any connected offence is an offence the sentence for which is fixed at law,
(d) the court is not proposing to–
(i) impose a custodial sentence, or
(ii) make a hospital order
in respect of the offence or any connected offence,
(e) the court is not proposing to make–
(i) an order for absolute discharge
(ii) an order for conditional discharge
in respect of the offence, and
(f) the offender pleaded guilty to the offence or to any connected offence.

(2) Referral order is not available unless the court has been notified by the SoS that arrangements for the implementation of referral orders are available in the area in which it appears to the court that the offender resides or will reside.

• Referral order is compulsory where
  (a) the offence is an imprisonable offence
  (b) the offender pleaded guilty to the offence and any connected offences
  (c) the offender has never been previously convicted of an offence
• Referral order must specify:

(a) the youth offending team which is to establish the youth offender panel
(b) the period for which any youth offender contract will take effect

• Period must be:
  (a) not less than 3 months, and
  (b) not more than 12 months.
• On making a referral order, the court must explain to the offender in ordinary language:
  (a) the effect of the order, and
  (b) the consequences which may follow–
  (i) if no youth offender contract takes effect,
  or
  (ii) if the offender breaches a youth offender contract.

Question 35

E3.3 - Guilty plea and referral orders

Answer 35

As a referral order is a sentence only available if the offender pleads guilty, there is no further reduction available for a guilty plea.

Question 36

E3.4 - More than one referral order

Answer 36

Where the court is dealing with a young offender for connected offences and is passing more than one referral order, the court may order that the specified periods of the orders shall run consecutively or concurrently, but the total period cannot exceed 12 months.