Children & Young persons in the Courts

Ideally all under 18s should be referred to as children (as in family proceedings) and we dislike the term ‘youth’ and the pejorative ‘youff’ but till that becomes acceptable then child and young person are preferable
s.107 (1) of the Children & Young Persons Act 1933 defines a ‘child’ as those under 14 and 14-17 as ‘young persons’.

When deciding whether to prosecute a young person, what factors will the CPS take into account?

The statutory provisions:

The key considerations governing the decisions made by the CPS in dealing with children and young people are those contained in statute:

• Section 44 of the Children and Young Persons Act 1933, which requires the courts to have regard to the welfare of a young person – ‘the welfare principle’
• Section 37 of the Crime And Disorder Act 1998, ‘the principal aim’
  which provides that:

‘(1) It shall be the principal aim of the youth justice system to prevent offending by children and young persons.

(2) In addition to any other duty to which they are subject, it shall be the duty of all persons and bodies carrying out functions in relation to the youth justice system to have regard to that aim.’

The Crown Prosecution Service Code of Conduct

In any prosecution the prosecutor has to consider the ‘evidential test’ (is there sufficient evidence to support a realistic prospect of actual conviction of the charge?) AND the ‘public interest’ test (is it in the public interest to prosecute even if there is sufficient evidence?).

In addition where the person charged is a child (10-14) or young person (15-17)

• The Code for Crown Prosecutors states that Crown Prosecutors must consider the interests of a youth, amongst other public interest factors, when deciding whether a prosecution is needed.

In applying these considerations, the CPS Legal Guidance on Youth Offenders (‘the CPS Guidance’) states that Crown Prosecutors will have regard to their obligations arising from the European Convention on Human Rights, the United Nations 1989 Convention on the Rights of the Child and the United Nations 1985 Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules).

In terms of the decision to prosecute, the CPS Guidance states the following:

‘A decision whether to prosecute a youth offender is open to judicial review if it can be demonstrated that the decision was made regardless of, or clearly contrary to a settled policy of the DPP. See R v Chief Constable of Kent and Another ex parte L, R v DPP ex parte B [1991] 93 Cr App R 416. The court held that an application for judicial review could be successful if the decision to prosecute was made without any or sufficient inquiry into the circumstances and general character of the accused. This judgment highlights the importance in appropriate cases of obtaining sufficient information about the youth’s home circumstances and background from sources such as the police, youth offending service, children’s services before making the decision whether to prosecute.’

Defence representations

It is often necessary for the defence practitioner to make representations to the CPS using their guidance on youth cautioning to divert the child or young person – this can be done at any stage in the proceedings though the earlier it is done the better. Often if the child refuses to make admissions in the police station the prosecution will say they have ‘lost their chance’ but it would be unfair to punish a child if they were advised not to make admissions by a solicitor or their appropriate adult because the it was unclear that the evidence was sufficient to prosecute or because the option of a caution or diversion had not been clearly explained to them.

Often it is unclear whether an admission will lead to diversion and the solicitor may well be negligent if they advised a client to make an admission in those circumstances. There is a need for a agreed without prejudice procedure in the police station to facilitate this but until this is agreed nationally there will be confusion as to what was offered by the police and what the child was willing to admit.

It is essential in all youth offender cases to ensure that all of the public interest matters which give rise to the decision are clearly identified, considered and balanced. A note of the factors identified but rejected or outweighed by other considerations should be made. This demonstrates that the decision to prosecute was taken only after a full review of the case and the background information, including that concerning the suspect provided by the youth offending service, police or local authority. Failure to show that the legal guidance has been considered and all factors for and against may lead to a successful challenge to the exercise of discretion by way of judicial review if their guidance is not followed and properly applied to all the information on the case may result in the decision to prosecute being quashed. See R (on the application of E,S and R v DPP [2011] EWHC 1465 (Admin).

Therefore, if a prosecutor refuses to provide a proper reasoned decision ask to why it is not suitable to divert a child who is eligible, the defence solicitor should ask for an adjournment of the proceedings to make full written submissions and for the Crown Prosecution Service (CPS) to address them fully. If the CPS fail to do so the defence lawyer can commence a judicial review challenge to that decision if it is irrational, unreasonable or procedurally flawed. Generally the Magistrates Court should adjourn the trial until the higher court has reviewed the decision. If the lower court refuses an adjournment there is jurisdiction to challenge that decision in the High Court before any trial in the Youth Court see R (on the application of DPP) v Manchester & Salford MC [2017] EWHC 3719 (Admin).

In addition an application can be made to stay the proceedings in the Youth Court as an abuse of process. The principles of abuse were summed up in Crawley [2014] EWCA Crim 1028. There are two types – where a fair trial is not possible or where a trial would be unfair.

In the second case if the police promised a diversion and the defendant admitted their guilt it will arguably be an abuse of process to go back on that promise as the State should be held to their promises see R v Croydon Justices Croydon Justices, ex parte Dean [1993] QB 769, Staughton LJ said that ‘the prosecution of a person who has received a promise, undertaking or representation from the police that he will not be prosecuted is capable of being an abuse of process’

Another example is the case of R v Bloomfield [1997] 1 Cr App R 135. Where the prosecution indicated they would drop a case but later told the defence that there had been a change of mind. The Court of Appeal agreed that allowing the prosecution to go ahead amounted to an abuse of process whether or not there was prejudice to the accused as it would bring the administration of justice into disrepute.

Turning 18

Depending on the stage in the proceedings, once the defendant reaches the age of 18, the Youth Court may have no jurisdiction. Therefore, if a young person attains the age of 18 before their first appearance in court, the case must be transferred to the adult magistrates’ court. No new charges can be laid in the youth court after the defendant attains the age of 18, including alternative charges and charges based on the facts and charges already before the court (R v Chelsea Justices ex parte DPP [1963] 3 All ER 65.) Where a defendant reaches 18 after making their first appearance, the court may:

• Continue to deal with the case and make any order which it could have made if he had not attained that age : section 29 Children and Young Persons Act 1963;
• Remit the defendant to the adult magistrates’ court before trial (section 47 Crime and Disorder Act 1998) for trial or after trial and before sentence (section 9 Powers of Criminal Courts (Sentencing) Act 2000.)

The defendant cannot elect trial on indictment if he attains 18 after entering a plea to an indictable only (R v St. bans Juvenile Court ex parte Turner (1985) 149 JPY 6) or either way offence (R v West London Youth Court ex parte Siley Windette [2000] CLR 926) as by taking a plea, the youth court has accepted jurisdiction.

The statutory provisions for sentencing also refer to the age of the defendant on conviction. Such age will be deemed to be that which it appears to the court to be after considering any available evidence: section 164(1) Powers of the Criminal Courts Act 2000. The sentence or order will not be invalid if it is subsequently established that the defendant is in fact a different age that makes him or her ineligible for such a sentence: R v Brown [1989] CLR 750. The Court should consider any evidence of age that is available at the hearing of the case. Where there is a dispute as to age which is material, it is better for the court to adjourn for more detailed inquiries if there is any doubt about the matter: R v Steed 1990.

Where a defendant turns 18 during any proceedings (in the Youth Court or the Crown Court) there is an ambiguity as to what sentencing regime they should be subject to – R v Ghafoor (Imran Hussain) [2002] EWCA Crim 1857; R v Bowker (Anthony) [2002] EWCA Crim 1608; R v Yarrow (Assad) EWCA Crim 1175 these cases suggest that age at date of offending is significant but not determinative so it may need to be argued
The most important source material for sentencing is the Sentencing Council’s Sentencing Children and Young People: Definitive Guide, these highlight the whole range of considerations that are relevant to sentencing children and young people.

And in case the judge is reluctant to take them into account you should remind them that there is a statutory requirement to follow the applicable guideline – see section125 Coroner & Justice Act 2009.

The Magistrates’ Court Act 1980 section 24 provides that where a person under 18 is brought before the Magistrates’ Court on an indictable offence (other than one falling within subsection (1B), he shall be tried summarily unless:

• the offence is one set out in subsection (1) or (2) of section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 (under which young persons convicted of certain grave crimes may be sentenced to be detained for long periods) and the court considers that if he is found guilty of the offence it ought to be possible to sentence him in pursuance of that section; or
• he is charged jointly with a person over 18 and the courts considers it necessary in the interests of justice to commit them both for trial.

The court therefore has the power to commit a child for trial if the case falls within either of these subsections, if it has sufficient evidence to do so.

Under section 51A of the Crime and Disorder Act 1998 (as substituted by the Criminal Justice Act 2003), youths charged alone are tried summarily in the youth court, unless:

• the offence is homicide; or
• the person is aged 16 or 17 and charged with an offence of possession or distribution of certain prohibited weapons under the Firearms Act 1968; or
• the magistrates decline jurisdiction under section 24 Magistrates Court Act 1980 because the offence is a grave crime¹; or
• the person is charged with a ‘specified offence’ as defined in section 224 Criminal Justice Act 2003² and has been sent for trial because the criteria for the imposition of a sentence of life or an extended sentence would be met (n.b. the CPS Guidance explains that it will be rare for a court to exercise this power). This section is subject to the provisions of the MCA 1980 section 24.

¹ As defined in section 91 Powers of Criminal Courts (Sentencing) Act 2000
² i.e. a specified violent or sexual offence

See R v Lang [2006] 1 WLR 2509

Sentencing Children & Young People: Definitive Guide para 2.7

In anything but the most serious cases it may be impossible for the court to form a view as to whether the child or young person would meet the criteria of the dangerous offender provisions without greater knowledge of the circumstances of the offence and the child or young person. In those circumstances jurisdiction for the case should be retained in the youth court. If, following a guilty plea or a finding of guilt, the dangerousness criteria appear to be met then the child or young person should be committed for sentence.

The CPS Guidance states that the question of venue for youths who are charged with grave crimes, specified offences or jointly charged with an adult should be considered at an early stage. Venue should be considered by a Youth Offender Specialist (YOS) on initial review of the file and kept under review until the issue is decided by the court. The decision of the YOS on venue together with reasons must be recorded on the file.

When considering the question of dangerousness, the principles set out in CPS v South East Surrey Youth Court and MG [2005] should be considered. In that case, the CPS applied for judicial review of a decision of a youth court declining to commit the defendant (MG) for trial at the Crown Court for an offence of assault occasioning actual bodily harm. MG was alleged to have committed two offences whilst under the age of 18. The first offence was an alleged assault on a victim by striking him in the face with a bottle, in relation to which he was interviewed by the police and bailed. He was later arrested for an unrelated offence of robbery with a knife, charged for that offence and remanded to the youth court, which sent him to the Crown Court under the Crime and Disorder Act 1998 section 51A(3)(d) for trial for the offence of robbery. On the same day, he was charged with assault occasioning actual bodily harm and appeared before the youth court where he was remanded.

The Crown invited the youth court to send the defendant to the Crown Court for trial for that offence under s.51A (3) (d) on the basis that it was a specified violent offence under the Criminal Justice Act 2003 section 224(3), and that there was a real possibility that, under section 228(2) of that Act, an extended sentence would be imposed. The youth court declined to consider s.51A(3)(d) and refused to send MG to the Crown Court on the basis that assault occasioning actual bodily harm was not a grave crime and, as the conditions under the Magistrates’ Courts Act 1980 s.24(1) had not been met, he should be tried summarily.

The Court held that section 24(1) of the 1980 Act required summary trial of a person under 18 years of age unless the offence was grave and might require a sentence of long-term detention, in which case the defendant had to be committed for trial. Section 51A of the 1998 Act required a child or young person to be sent to the Crown Court for trial if the offence was specified in schedule 15 of the 2003 Act and, if convicted, it appeared that the criteria for the imposition of an indeterminate sentence under s.226 of the 2003 Act or an extended sentence under s.228 of the 2003 Act would be met. It was not open to a youth court to ignore either s.24 (1) of the 1980 Act or s.51A of the 1998 Act. However, pending the implementation of paragraph 9 of schedule 3 of the 2003 Act, in considering the applicability of s.24(1) and s.51A in a particular case, justices should bear in mind:

• the policy of the legislature that those who are under 18 should, wherever possible, be tried in a youth court, which is best designed for their specific needs, as per R (on the application of H) v Southampton Youth Court (2004) EWHC 2912 (Admin). the guidance given in relation to non-serious specified offences, in particular in R v Lang (2005) EWCA Crim 2864 i.e. if the foreseen specified offence is not serious, there will be comparatively few cases in which a risk of serious harm will properly be regarded as significant.
• the need, in relation to those under 18, to be particularly rigorous before concluding that there is a significant risk of serious harm by the commission of further offences, since such a conclusion is unlikely to be appropriate in the absence of a pre-sentence report following assessment by a young offender team.
• in most cases where a non-serious specified offence is charged, an assessment of dangerousness will not be appropriate until after conviction when, if the dangerous criteria are met, the defendant can be committed to the Crown Court for sentence: The Queen (on the application of the DPP) v South Tyneside Youth Court [2015] EWHC 1455 (Admin).

The Court therefore concluded that, in so far as the youth court declined to consider the provisions of s.51A (3) (d), its approach was flawed. However, its conclusion that MG should be tried summarily was unimpeachable. Accordingly, notwithstanding the flawed approach, the youth court’s decision was upheld.

Important cases on jurisdiction to keep cases in the Youth Court:

BW v Caernarvon Youth Court [2013] EWHC 1466 Admin on dealing with dangerousness where district judge was right to accept jurisdiction for 13 year old accused of oral rape and other sexual offences but was wrong to later commit for sentence to the Crown Court.

R (on the application of B) v Norfolk Youth Court which confirmed that a 13 year old should be tried summarily for knife point robberies

The leading case on whether there is a real prospect of a sentence of more than 2 years ins the judgment of the President of the Queen’s Bench (Sir Brian Leveson) in The Queen (on the application of the DPP) v South Tyneside Youth Court [2015] EWHC 1455 (Admin). That case re-iterates the power of the Youth Court to now commit children to the Crown Court for sentence at a later stage than before and need to be conservative in making decisions that a long sentence will be inevitable.

There will of course be occasions where a youth is charged alongside an adult, and in these circumstances the youth court will need to exercise its judgment when assessing the competing presumptions in favour of, on the one hand, joint trial for those jointly charged (i.e. which would mean trial in the normal magistrates’ court), and on the other hand the trial of youths in the youth court. If the offence is triable either way or indictable only, the court must only send the youth offender to the Crown Court for trial with an adult where it is necessary in the interests of justice to do so. However, if the offence is a grave crime, the court should first conduct the grave crime procedure (see below), and should send the youth to the Crown Court if there is real prospect of a custodial sentence of two years or more. If there is no real prospect of such a sentence, then the youth should be remitted for trial in the youth court, and this will reduce delay and allow more youth co-defendants to be tried together.

As the CPS Guidance explains, trial on indictment is unnecessary, because the youth can be committed for sentence under section 3C of the Powers of Criminal Courts Act 2000 if, having heard all the facts about the offence and the offender, the court decides that a sentence under the dangerousness provisions may be necessary.

The CPS Guidance explains that factors relevant to the decision by the court as to how youth and adult co-defendants should be dealt with will include:

• the age and maturity of the youth
• the comparative culpability in relation to the offence
• whether there are existing charges against the youth before the Youth Court
• the previous convictions of both accused
• whether the trial can be severed without either injustice or undue inconvenience to witnesses
• the need to deal with the youth as expeditiously as possible in the interests of justice
• the likely sentence upon conviction

The Guidance explains that a joint trial will usually be in the interests of justice, because it reduces the risk of inconsistent verdicts and is less stressful and inconvenient for the witnesses. Although youths should be tried in a specialist youth court wherever possible, they can have a fair trial in the Crown Court, which can modify its practice and procedure to enable the youth to participate effectively in their trial.

If a youth is convicted on indictment of a grave crime, the Crown Court may pass a sentence of detention under section 91(3) Powers of Criminal Courts (Sentencing) Act 2000 for a period that does not exceed the maximum period of imprisonment that can be imposed on a person aged 21 or over.

The CPS Guidance explains:

‘…in all cases involving a grave crime, the magistrates should be invited to consider the question of venue.  Schedule 3 Criminal Justice Act 2003 introduces a modified plea before venue procedure and committal for sentence provisions.  A youth will be asked to indicate a plea (section 24A(6) Magistrates’ Courts Act 1980), and may be committed for sentence following an indicated guilty plea, if the youth court considers that there is a real prospect of a custodial sentence of or in excess of 2 years (section 3B Powers of Criminal Courts (Sentencing) Act 2000). If the youth indicates a not guilty plea or gives no indication of plea, then the court will consider venue. Section 3B Powers of Criminal Courts (Sentencing) Act 2000 does not apply where the youth is convicted after trial, so it is essential that proper consideration is given to venue before a plea is taken to ensure that the convicting court has the power to pass a sentence that is commensurate with the seriousness of the offence.’

When the issue of venue is considered, the principles set out in R on the application of H, A and O v Southampton Youth Court [2004] should be considered. In that case, the three defendants sought to quash a decision of a youth court declining jurisdiction to try them and committing them to a crown court for trial. The co-defendants were 13-years-old and had been charged with the indecent assault of a 13-year-old friend. They had all previously been of good character. The youth court had ordered the case to be transferred to a crown court under the Magistrates’ Courts Act 1980 s.24 (1) on the basis that the allegation fell into the grave crimes category. The defendants argued that the youth court had failed to apply the appropriate test and had wrongly committed them to a crown court.

The Court held that when considering whether a case involving young offenders should be transferred to a Crown Court, a youth court should have regard to the following:

• The general policy of the legislature is that offenders under 18 years old, and in particular those under the age of 15, should wherever possible be tried in a youth court. A Crown Court trial with greater formality should be reserved for the most serious cases.
• Generally, first offenders aged 12-14 and younger should not be detained in custody and should only be tried in a Crown Court exceptionally where grave offences have occurred, which will be rare.
• In each case the court should ask itself whether there is a real prospect, having regard to the offender’s age, that a two-year detention would be ordered or whether the offence has other unusual features. Not being able to issue a detention order because the defendant is under 15 will not count as an exceptional circumstance.

In the case, the youth court was found to have misunderstood the case law authorities, and this error was sufficient to render the decision flawed. The decision was quashed and remitted.

The CPS Guidance also makes reference to the Sentencing Guidelines Definitive Guideline: Overarching Principles Sentencing Children & Young People paragraph 2.10 which sets out the following guidance in relation to grave crimes:

Where the court decides that the case is suitable to be dealt with in the youth court it must warn the child or young person that all available sentencing options remain open and, if found guilty, the child or young person may be committed to the Crown Court for sentence.

Children and young people should only be sent for trial or committed for sentence to the
Crown Court when charged with or found guilty of an offence of such gravity that a custodial sentence substantially exceeding two years is a realistic possibility. For children aged 10 or 11, and children/young people aged 12 – 14 who are not persistent offenders, the court should take into account the normal prohibition on imposing custodial sentences.

Section 37 of the Crime and Disorder Act 1998 sets out that the ‘principal aim of the youth justice system [is] to prevent offending by children and young persons’. Youth Offending Teams (YOTs) are an essential part of ensuring that this aim is delivered.
The Youth Justice Board publication ‘Making it Count in Court’ explains the role of the YOT as follows:

‘YOTs are designed to undertake work to prevent children and young people offending in the first instance. Given the inter-agency membership of YOTs, they are well placed to identify young people known to the relevant agencies as being most at risk of offending. They can then work with the young people and their families or carers to encourage them towards more positive activities…Alongside their prevention work, YOTs work with 10 to 17-year-olds who either have, or are alleged to have, committed an offence. This work runs from the young person’s first point of contact with the police through to conviction and completion of sentence.’

The YOT is a key player in the court setting. The information the YOT provides to the court influences the decisions taken by the CPS, the defence and the judiciary. However, prior to appearing in court, the young person may have been involved with various out-of-court disposals, and the YOT will also be heavily involved in these (see Stage 2).

Making it Count in Court (‘MCC’) includes a useful diagram setting out the way the various agencies work in partnership to ensure an effective first hearing in court. Youth Offending Teams play an essential role within both the youth court and the Crown Courts, and MCC explains that this is particularly so with regard to the use of custody:

The YJB’s research report, ‘Fine Art or Science? Sentencers Deciding Between Community Penalties and Custody for Young People’ (Solanki and Utting, 2009), has identified that where there are higher levels of confidence in the work of the YOT, there is a better working relationship between the YOTs and the court. This research highlights the importance of the YOT delivering a high-quality service to the court and thus helping to ensure the efficient delivery of youth justice processes.

Understanding the role of the YOT in court is essential for defence practitioners, and the role of the YOT court practitioner is fundamental to the effective delivery of court work. Court duty is a high-priority area of work for YOTs, and in some areas there are dedicated teams of YOT practitioners who regularly service the courts and develop specialist skills in this field. In other areas, a YOT-wide rota system is operated. This second arrangement would mean that all or most of the YOT practitioners would develop specialist court skills and spend some time in court. The National Standards for Youth Justice Services and Case Management Guidance³ provide a breakdown of the core court duty tasks. These tasks have been added to in order to develop the following comprehensive (but not exhaustive) list of duties as explained in Making it Count in Court:

• engaging with young people and their parents/carers, and providing information on the court process
• facilitating communication between the child or young person, their parents/carers and the court
• attending court early to share information with the CPS and defence lawyers
• providing information to courts about children and young people known to the YOT
• presenting stand down reports, specific sentence reports and presentence reports to the court
• providing bail and remand assessments and packages
• prosecuting young people who have breached their order
• recording relevant court information relating to children and young people
• developing the confidence of the court regarding the quality of services provided by the YOT
• preparing placement forms and other relevant forms in line with Case Management Guidance; these must then be sent by YOTs to the YJB Placements and Casework Service team
• informing the YJB Placements and Casework Service team immediately by phone or Secure eMail when the outcome of a case requiring a custodial placement is known
• prior to the young person being transported from the court to custody, ensuring that the custodial warrant issued by the court is accurate by using the warrant checklist
• supplying Saturday and occasional courts with YOT services and assessments.

In terms of the role of the YOT in court, the preparatory work they do will include ensuring that they are receiving information from the police regarding those young people who are subject to out-of-court disposals. This information should be provided within 24 hours of the police disposal or decision. When preparing for court, the YOT may identify cases where there may still be a potential out-of-court disposal available for that young person. The CPS should be alerted to this as soon as possible, as it is their decision as to whether a case is suitable for diversion (i.e. out-of-court disposal). Some offences will be too serious and will therefore demand a prosecution. If the case is suitable, the defence will need to be alerted so that they can take instruction from their client on this issue.

YOTs should use the information provided by the police to ensure that, where appropriate, supervising practitioners provide the court practitioner with up-to-date information about the young person. When a copy of the court list is received, a further check can be made. This will help to ensure that information about all young people who are on the court list and who are already being supervised is available for the court practitioner. It is good practice to contact young people in advance of their first hearings and provide them with information about the court process. YOT court practitioners should be aware that the judiciary may have questions about the content of reports, including requests for clarification about comments made in the report or in the proposal. While the best option is to have the report writer in court, this will not always be possible. In this event, the YOT court practitioner should familiarise themselves with the contents of the report and speak to the report writer about any issue that they think may arise. Preparation for court should be undertaken at least the day before the court hearing. MCC explains that the main components of this preparation should include:

• providing a rota of practitioners to cover the appropriate courtrooms
• accessing LIBRA for copies of the court lists (this is dependent on the local authority using Government Connect services). If there is no access to LIBRA, copies of court lists should be obtained in accordance with the locally agreed procedure
• reviewing court lists and YOT databases concerning cases appearing in court
• liaising with children’s/social services for information on known young people
• preparing court papers/CPS files – ensuring that up-to-date antecedents and copies of previous court reports and Asset records are available
• identifying breach cases and preparing information about the young person’s progress – ensuring that all the paperwork is prepared
• reviewing court reports to be presented in court – ensuring that sufficient copies are available
• reviewing whether there are any parenting assessments to link with reports and any contact arrangements or information the YOT court practitioner may need to pass on to parents/carers
• liaising with the local housing lead regarding any accommodation needs
• identifying cases requiring bail assessments – liaising with the bail support practitioner and/ or bail Intensive Supervision and Surveillance (ISS) practitioner to ensure that relevant information is available
• identifying possible remand cases– reviewing the current availability of custodial places via the YJB Placements and Casework Service team
• identifying any cases that may result in a custodial sentence – ensuring that up-to-date Asset and post court reports are available to be emailed via Secure email to custodial institutions
• identifying any young people with a history of non-attendance at court– ensuring that the supervising practitioner contacts parents/carers to encourage them to accompany their child
• contacting the young person to remind them to attend, deploying YOT sessional/voluntary practitioners or the bail support/bail ISS practitioner where appropriate.

³ http://www.justice.gov.uk/downloads/youth-justice/yjb-toolkits/victims/national-standards-youth-justice-services.pdf

It is also the role of the YOT to prepare the young person for their experience of the Criminal Justice System, which they may be entering for the first time. All assessments and information provided in relation to a young person must therefore take into account any mental health problems, learning difficulties or speech/language/communication needs. As set out in MCC, it is the YOT’s role to ensure that:

• the young person understands their rights in regard to legal representation, legal aid and the use of the duty lawyer. It should be emphasised that if the young person wants their own defence lawyer to represent them, the young person must contact that lawyer and arrange for him/her to attend court to represent them prior to the first hearing
• the young person has been given the leaflet You have to go to Court (HMCS, 2009). Where necessary, further explanation should be given and any questions should be answered to ensure that the young person understands the court process
• parents/carers will be available to attend court and are informed of the importance of attending
• the young person knows the date and time of the court hearing
• the young person knows the importance of dressing and behaving appropriately in court, including not attending court under the influence of alcohol or other substances
• any YOT assessments (including specialist assessments) are completed prior to court so as not to hinder the court process

The legal framework.

If a child is refused bail they are remanded to local authority accommodation (LAA). A secure remand to LAA (colloquially referred to as a remand to custody) may be made in limited circumstances. These are set out in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 [“LASPO”] which came into force on 3 December 2012, remands after that date are subject to the court’s powers under LASPO.

The refusal of bail and a remand to LAA are separate stages of the first appearance for the child. Therefore, when charged with murder the Court must still determine at the first hearing whether to remand to secure accommodation notwithstanding the fact that s.115 Coroners & Justice Act 2009 prevents the Youth or Magistrates Court considering a bail application – see R (on the application of A) v Lewisham YC [2011] EWHC 1193 (Admin).

‘Even for a child or young person charged with an offence as grave as murder, remand in a prison establishment should be the final resort’ (per Toulson L.J. R v A par 20)

By Section 91(4), the court may remand a child to youth detention accommodation (section 91 of LASPO) where the relevant conditions under Section 98 and 99 are fulfilled. It is agreed that the relevant conditions were fulfilled here.

Remand is pursuant to section 102 which reads as follows:

“102 Remands to youth detention accommodation

(1) A remand to youth detention accommodation is a remand to such accommodation of a kind listed in subsection (2) as the Secretary of State directs in the child’s case.
(2) Those kinds of accommodation are-
(a) a secure children’s home,
(b) a secure training centre,
(c) a young offender institution,
………….
(6) Where a court remands a child to youth detention accommodation, the court must designate a local authority as the designated authority for the child for the purposes of-
(a) subsection (8),
(b) regulations under section 103 (arrangements for remands), and
(c) section 104 (looked after child status).
……………….
(9) A function of the Secretary of State under this section (other than the function of making regulations) is exercisable by the Youth Justice Board for England and Wales concurrently with the Secretary of State.”

A child may be remanded to youth detention accommodation once the relevant conditions are fulfilled; once remanded, the direction as to which accommodation amongst the categories identified is a matter for the Secretary of State and that function is (normally) exercised by the Youth Justice Board.

By s. 104 LASPO 2012 the child acquires looked after status.

Remands to secure accommodation should be a last resort even in the case of murder.

The Act requires the designation of a local authority by the court at the time of the remand into youth detention, and by section 104 of the Act:

“a child who is remanded to youth detention accommodation is to be treated as a child who is looked after by the designated authority.”

ML v YJB [2013] EWHC 3083 (Admin)

In June 2013, the YJB produced its “Placement Review and Transfer Protocol [“PRTP”]

The central provisions are in sections 2 and 3 of the policy which read as follows:

“2. Placement review – multi disciplinary meetings

2.1 A placement review by the YJB Placement Service maybe required when a child or young person’s current circumstances have changed or an issue has been identified by a person with responsibility for the care or welfare of the child or young person (see paragraph 2.2) that has caused them to believe either that:
a) There is a risk to the child or young person’s welfare; or
b) The child or young person poses a specific risk to the welfare of other children or staff in the establishment.
c) The child or young person requires a planned move
2.2 A person that has responsibility for the care, welfare or case management of the child or young person may include:

• Member of staff in current establishment
• YOT worker
• Local authority
• Parent
• Legal representative or advocate
• Teacher or classroom assistant

Any other person that deals with the needs or welfare of the child or young person
The child or young person themselves

2.3 When a risk has been identified this must be brought to the attention of a key member of staff in the current establishment such as a case worker or unit manager and a multi-disciplinary meeting (MDM) should be convened with the purpose of establishing how the risk can be managed or reduced.

2.4 The multi-disciplinary meeting (MDM) should be arranged and chaired by a senior manager of staff.
Members of the meeting should include:

• Operational Manager (Chair)
• Case worker
• Personal Officer
• Unit Manager
• YOT worker
• Parents
• Advocate for the child or young person
• Local authority social worker (if the child or young person is looked after)
• Representative from healthcare and/or CAMHS professional
• The child or young person (for all or part of the review)

2.5 Notification of an intention to hold a MDM (Annex A) must be sent to the YJB Placement Service functional mailbox as a flag to alert the YJB that a placement of a child or young person is causing concern……

2.6 This meeting should review all options to support the child or young person in the current establishment. A plan should be discussed, agreed and implemented before any request to move a child or young person under this protocol is made.

2.7 If at this meeting, or at some point afterwards, it is decided that the child or young person should be transferred to a new establishment a request should be made by the establishment to the placement review team located within the YJB Placement Service using the application form described in Section 3 of this protocol. This completed application must be sent.
2.8 Clear evidence of all strategies used to manage the child or young person within the current establishment must be presented when an application for a placement move is submitted.

3. Required action before requesting a placement move

3.1 A placement move should only be requested when all other avenues of managing the child or young person in their current establishment have been explored.

3.2 Clear evidence must be presented and recorded on the MDM Record and Recommendation Form (MDMRRF) (Annex F) that demonstrates the range of actions that have been taken to manage the child or young person. Reasons must be given to explain why these strategies were not successful in managing or reducing the risk posed by the child or young person and how a change of placement would do so.

3.3 This evidence must also be recorded onto the electronic records (eAsset, C Nomis) which will be checked during the application process.

3.4 Examples of evidence that should be provided include:

• Records of Arbitration or mediation (restorative practice);
• Support plans or risk assessments;
• Records of any disciplinary hearings and outcomes;
• Reintegration plans;
• Behaviour management plans or contracts/compacts;
• Records of psychological or psychiatric interventions;
• Records of periods of separation or segregation;
• Incident reports;
• Security intelligence;
• Case notes – personal officer entries;
• eAsset case recordings

The following evidence is mandatory and must be provided in all cases

• Multi Disciplinary remand or sentence planning meeting notes; (the most recent available)
• Recommendations from the multi disciplinary meeting MDM (see annex F)
• Evidence from the above sources to accompany the MDM Record and Recommendation Form

The following principles must be taken into account when requesting a placement move and the YJB will be seeking evidence that:

• Everything that can be done within the establishment to alleviate the risk has been done (evidenced will be sought in records of multi disciplinary sentence planning);
• All management strategies to reduce risk and reintegrate the child or young person that have been attempted must be provided.
• All partners involved in the welfare of the child or young person must be consulted before an application for a placement move is made to the YJB.

If these procedures are not followed then the child may challenge the decision ultimately using judicial review if appropriate.

Generally you cannot identify a child or young person concerned in criminal proceedings in the Youth Court as witness or defendant, section 49 Children & Young Persons Act 1933 (CYPA).
The restriction can be lifted in order to avoid injustice to the child or to assist finding a child defendant who is at large provided they are charged with a serious violent or sexual offence – carrying 14 years or more for an adult.
In the Crown Court or Magistrates court there is a discretion to make such a direction whilst the child in under 18. This can be dispensed with if in the interest of justice provided the court takes into account the welfare of the child s.45(4) CYPA 1933.
For victims and witnesses under 18 there is lifetime anonymity in s.45A YJCA 1999.
In civil cases such as Anti Social Behaviour Injunctions s.39 CYPA applies so the court has a discretion which will balance open justice with the welfare of the child.

Robert Jolleys ex parte Press Association [2013] EWCA Crim 1135 – What does Section 39 CYPA cover?
(1) In relation to any proceedings in any court the court may direct that

a. no newspaper report of the proceedings shall reveal the name, address, or school, or include any particulars calculated to lead to the identification, of any child or young person concerned in the proceedings, either, as being the person by or against, or in respect of whom proceedings are taken, or as being a witness therein;

b. no picture shall be published in any newspaper as being or including a picture of any child or young person so concerned in the proceedings as aforesaid;
except in so far (if at all) as may be permitted by the court.

(2) Any person who publishes any matter in contravention of any such direction shall on summary conviction be liable in respect of each offence to a fine not exceeding level 5 on the standard scale.”

The Court held the phrase “concerned in the proceedings” is defined and limited by the words that follow “the person by or against, or in respect of whom proceedings are taken, or as being a witness therein“. It does not extend to children or young persons simply on the basis that they may be concerned in the more general sense of being affected thereby. They found that construction is reinforced by the unanimous view of the House of Lords in Re S (A Child) (Identification: Restrictions on Publication) [2005] AC 593 expressed by Lord Steyn, who emphasised these words and observed that in regard to children not concerned in a criminal trial in the way described, there had been a legislative choice not to extend the right to restrain publicity to them (see paragraph 21 at page 605B).

In various statutes and cases the term persistent offender becomes an important factor

R. v L [2012] EWCA Crim 1336; [2013] 1 Cr. App. R. (S.) 56 where the Court of Appeal decided that a series of offences within a short period of time could not be viewed as “persistent” and therefore neither a Detention and Training Order nor an ISSP requirement could not be imposed on a 14 year old.

There is a general restriction on imposing imprisonment contained in s.89 Power of Criminal Courts (Sentencing) Act 2000 which prevents any court from sending a person under 21 to prison or imposing imprisonment; custody or detention is the only available sentence for those under 21 including children and young persons

In the case of murder this will be detention at Her Majesty’s Pleasure and for the minimum term see ss.269-277 and Sch.21 and Sch.22 of Criminal Justice Act 2003. The starting point is 12 years.

For the effect of turning 18 shortly before the killing see R. v Adeojo (Sodiq) [2013] EWCA Crim 41.

Detention for life for serious offences committed by those under 18 were the court is: (1) of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences; and the offence is one the offender would be liable to a sentence of detention for life under s.91 Power of Criminal Courts (Sentencing) Act 2000; and (2) the court considers the seriousness of the offence, or of the offence and one or more offences associated with it, is such as would justify the imposition of a sentence of detention for life – see s.226 Criminal Justice Act 2003. Note LASPO 2012 Pt.3 Ch.5 abolishes detention for public protection and repeals s.226(3). In deciding whether the criteria for detention for life is met, the court must take account of the capacity for change in children and young persons R. v Lang (Stephen Howard) [2005] EWCA Crim 2864; [2006] 1 W.L.R. 2509 The court must specify the minimum term to be served – s.82A(2) PCCSA. Following the implementation of LASPO the court can impose an extended sentence were the appropriate minimum term would be at least 4 years the court may impose an extended period as the court considers necessary to protect members of the public from serious harm occasioned by the commission of further specified offences. The extension period must not exceed 5 years in the case of a specified violent offence or 8 years in the case of a specified sexual offence. The offender will be released on license after two thirds of the custodial term. s.226B Criminal Justice Act 2003.

Minimum terms of detention: for those aged 16 or 17 s.51A Firearms Act 1968 provides for a minimum term of 3 years detention for offences involving possession of a firearm in a public place or with intent to commit certain offences unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender. Whilst s.28 of the Violent Crime Reduction Act 2006 imposes a similar minimum period unless the court is of the opinion that there are exceptional circumstances where a 16 or 17 year old is convicted of using another to look after, hide or transport such a firearm. The offence of having a blade, point or offensive weapon in a public place or on school premises and threatening to cause an immediate risk of serious harm introduced by s.142 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 carries a minimum detention and training order of 4 months unless there are particular circumstances relating to the offence, or the offender which would make it unjust to do so in all the circumstances.

The only other form of custody available when sentencing those under 18 are detention orders introduced by the Crime and Security Act 2010 for breaches of gang injunctions imposed by the County Court. These can last for a period up to 3 months.

Police Station Update:

If a custody officer detains a juvenile post charge then the custody officer shall ensure that the arrested juvenile (10-16) is moved to local authority accommodation:
ONLY 2 EXCEPTIONS and if apply then Custody Sergeant must CERTIFY to that effect:

(1) It is impracticable to move the child – R v CC of Cambridgeshire ex p M [1991] 2 QB 499 states that means physical impossible i.e. blizzard snow drift flooding
or
(2)
(i) The juvenile is at least 12 and
(ii) No secure accommodation is available and
(iii) Keeping him in other LAA would not be adequate to protect the public from serious harm from him PACE 1984 s.38(6)(b)

Note serious harm usually means ‘death or really serious personal injury’ – very high threshold and consider:
PACE CODE C Note 16D
“Neither a juvenile’s behaviour nor the nature of the offence with which he is charged provides grounds for the custody officer to detain him in police custody rather than seek to arrange his transfer to LAA”
Where the juvenile is charged with violent or sexual offences, “protecting the public from serious harm from him” is to be construed as a reference to protecting members of the public from death or serious personal injury, whether physical or psychological, occasioned by further such offences committed by him – PACE s. 38(6)

NOTE: these provisions only apply to new charges not Brach of Bail or Warrant cases.

All under 18s now treated the same.

HC v SSHD & Commissioner of Police for the Metropolis [2013] EWHC 982 (Admin)

HELD: (1) Those falling within the category of a child received different treatment within the domestic criminal justice system to adults. Under the Children Act 2004 s.11(1)(h), the police were required to discharge their functions having regard to the need to safeguard and promote children’s welfare. Under s.65(1) of that Act, a child was defined as a person under the age of 18 (see paras 30-31, 36-37 of judgment). (2) The treatment of 17-year-olds under Code C was inconsistent with the United Nations Declaration on the Rights of the Child 1959 and the Convention on the Rights of the Child 1989 (UNCRC) and the views of the United Nations Committee of the Rights of the Child. There was also a substantial body of domestic opinion as to the need not to treat 17-year-old detainees as adults, and domestic case law acknowledged the special position of children in the criminal justice system, R. v G [2003] UKHL 50, [2004] 1 A.C. 1034, R. (on the application of R) v Durham Constabulary [2005] UKHL 21, [2005] 1 W.L.R. 1184 and McGowan v B [2011] UKSC 54, [2011] 1 W.L.R. 3121 considered. The role of a parent or an appropriate adult was critical because it provided a gateway to a young person’s access to justice which the state should not obstruct, Children’s Rights Alliance for England v Secretary of State for Justice [2013] EWCA Civ 34, [2013] H.R.L.R. 17 applied (paras 47, 51, 57-63). (3) To argue that 17-year-olds had the same rights as adults when in detention did not meet the essential question whether they should be afforded greater protection. The suggestion that a solicitor could replace an appropriate adult did scant justice to the function of an appropriate adult in relation to children in detention; the appropriate adult would usually be somebody the young person knew and trusted, often their parent, and a duty solicitor, wholly unknown to them, was hardly a substitute (paras 65, 68-69). (4) The scope of private and family life protected within art.8(1) included the right to establish, develop and maintain relationships even within the context of prison, R. (on the application of Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 A.C. 532 considered. It was difficult to imagine a more striking case where the rights of both child and parent under art.8 were engaged than when a child was in custody on suspicion of committing a serious offence and needed help from someone with whom he was familiar and whom he trusted. Once it was accepted that art.8 was engaged, the secretary of state could not resist the application of the principles contained in the UNCRC, R. (on the application of SR) v Nottingham Magistrates Court [2001] EWHC Admin 802, (2002) 166 J.P. 132, ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 A.C. 166 and R. (on the application of HH) v Westminster City Magistrates’ Court [2012] UKSC 25, [2013] 1 A.C. 338 applied. It was inconsistent with the art.8 rights of C and his mother for the secretary of state to treat 17-year-olds as adults when in detention. To do so disregarded the definition of a child in the UNCRC, other international instruments and the legislation affecting children and justice which included within their scope those who were under 18. The secretary of state’s failure to amend Code C was in breach of her obligation under the Human Rights Act 1998, and unlawful (paras 79-81, 85, 89, 99).

Application granted

From 27 October 2013 Code C of PACE extended provision for Appropriate Adults to 17 years olds.

The Lord Chief Justice and other senior members of the Court of Appeal have made it clear in a number of recent cases that the Guidance for sentencing Children and Young Persons remains relevant to defendants who have passed the age of 18.

R v Eniola Balogun [2018] EWCA Crim 2933

In reviewing the sentence of an 18 year old for a series of rape offences Holroyde LJ quoted the LCJ in Clarke

“Reaching the age of 18 has many legal consequences, but it does not present a cliff edge for the purposes of sentencing. So much has long been clear … Full maturity and all the attributes of adulthood are not magically conferred on young people on their 18th birthdays. Experience of life reflected in scientific research… is that young people continue to mature, albeit at different rates, for some time beyond their 18th birthdays. The youth and maturity of an offender will be factors that inform any sentencing decision even if an offender has passed his or her 18th birthday.”

Total sentences were reduced form 21 years’ detention to 18 years.

See also

AG Reference R v Morghan Clarke [2018] EWCA Crim 185 quoted above.
R v Branden Marc Daniels [2019] EWCA Crim 296
Lord Burnett of Maldon (LCJ) again emphasised the lack of a cliff age where a 20 year old pleaded guilty to causing death and serious injury to passengers in his car when he drove dangerously. 6 years and 6 months imprisonment was not unduly lenient where the defendant had pleaded guilty taking account of his level of maturity.