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Rape and Sexual Offences:             Chapter 11: Youths

Contents:

Youths

This guidance expands on, and should be read in conjunction with other specific sections elsewhere in this Sexual Offences guidance. Also note the Notification requirements. Any decision to prosecute or not to prosecute should be free of discrimination on the grounds of sexual orientation and gender.

If an allegation of any sexual abuse committed by a youth offender has been fully investigated and there is sufficient evidence to justify instituting proceedings, the balance of the public interest must always be carefully considered before any prosecution is commenced. Positive action may need to be taken at an early stage of offending of this type. Although a reprimand or final warning may provide an acceptable alternative in some cases, in reaching any decision, the police and the CPS will have to take into account fully the view of other agencies involved in the case, in particular the Social Services. The consequences for the victim of the decision whether or not to prosecute, and any views expressed by the victim or the victim's family should also be taken into account.

In child abuse cases, it will be important to have the views of the Social Services on file if at all possible, as well as any background or history of similar conduct, information about the relationship between the two and the effect a prosecution might have on the victim.

Any case referred to the CPS for advice, or in which a prosecution does proceed, must be dealt with as quickly as possible to minimise the delay before the case comes to court.

Irrespective of whether the evidence is sufficient to found a criminal prosecution, The Social Services will consider taking civil action, such as care proceedings, to protect the child. The police and the CPS may well be asked to disclose evidence to assist in this process. Great care should be taken to follow the guidance set out in the section on disclosure to third parties

Chief Crown Prosecutors must be notified of any case where at least one of the complainants and at least one of the suspects are under the age of 13. This includes cases which are diverted from prosecution, whether on evidential or public interest grounds.

All such cases must be reviewed by a prosecutor who is both a rape specialist and a youth specialist. All advocates conducting these cases must have a rape specialism and should also have a youth specialism.

When reviewing a case, in which a youth under 18 is alleged to have committed an offence contrary to sections 5 to 8, prosecutors should obtain and consider:

  • the views of local authority Childrens and Young Peoples Service;
  • any risk assessment or report conducted by the local authority or youth offending service in respect of sexually harmful behaviour ( such as AIM (Assessment, Intervention and Moving On);
  • background information and history of the parties ;
  • the views of the families of all parties.
  • Careful regard should be paid to the following factors:
  • the relative ages of the parties;
  • the existence of and nature of any relationship;
  • the sexual and emotional maturity of the parties and any emotional or physical effects as a result of the conduct;
  • whether the child under 13 in fact freely consented (even though in law this is not a defence) or a genuine mistake as to age was in fact made;
  • whether any element of seduction, breach of any duty of responsibility to the child or other exploitation is disclosed by the evidence;
  • the impact of a prosecution on each child involved.

If the sexual act or activity was in fact genuinely consensual and the youth and the child under 13 concerned are fairly close in age and development, a prosecution is unlikely to be appropriate. Action falling short of prosecution may be appropriate. In such cases, the parents and/or welfare agencies may be able to deal with the situation informally. There is a fine line between sexual experimentation and offending and in general, children under the age of 13 should not be criminalised for sexual behaviour in the absence of coercion, exploitation or abuse of trust.

However, if a very young child has been seduced by a youth, or a baby-sitter in a position of responsibility has taken advantage of a child under 13 in his/her care, prosecution is likely to be in the public interest. Where a child under 13 has not given ostensible consent to the activity, then a prosecution contrary to sections 5 to 8 is likely to be the appropriate course of action. Where the Full Code Test is satisfied in a case in which a youth is suspected of committing a sexual offence involving a child under the age of 13, the appropriate charge will be an offence contrary to sections 5 to 8 Sexual Offences Act 2003, depending on the act, and not the lesser offence contrary to section 13 Sexual Offences Act 2003.

Rape of a child under 13 (section 5), assault of a child under 13 by penetration (section 6) and causing or inciting a child under 13 to engage in sexual activity that involves penetration (section 8) are indictable only offences with a maximum sentence of life imprisonment. The offences of sexual assault of a child under 13 (section 7), causing or inciting a child under 13 to engage in sexual activity where there has been no penetration (section 8) are punishable on indictment with imprisonment for a term not exceeding 14 years. They are all 'grave crimes' for the purposes of section 24 Magistrates' Courts Act 1980 and s.91 Powers of Criminal Courts (Sentencing) Act 2000.


It is an offence contrary to section 13 Sexual Offences Act 2003 if a person under 18 does anything which would be an offence under sections 9 - 12 Sexual Offences Act 2003 See Offences Against Children under 16 : sections 9 -13 in Sexual Offences Act elsewhere in this guidance. These offences are punishable on indictment with imprisonment for a term not exceeding 5 years. They are 'grave crimes' for the purposes of section 24 Magistrates' Courts Act 1980 and section 91 Powers of Criminal Courts (Sentencing) Act 2000. Section 13 (2) (a) purports to restrict the maximum penalty on summary conviction to a maximum of 6 months imprisonment, although this should be read in the light of section 101 (2) Powers of Criminal Courts (Sentencing) Act 2000 to allow a Detention and Training Order of up to 24 months.

See Code for Crown Prosecutors considerations and Code for Crown prosecutors - child defendant (under 18) in Sexual Offences elsewhere in this guidance
It should be noted that where both parties to sexual activity are under 16, then they may both have committed a criminal offence. However, the overriding purpose of the legislation is to protect children and it was not Parliament's intention to punish children unnecessarily or for the criminal law to intervene where it was wholly inappropriate. Consensual sexual activity between, for example, a 14 or 15 year-old and a teenage partner would not normally require criminal proceedings in the absence of aggravating features. The relevant considerations include:

  • the respective ages of the parties;
  • the existence and nature of any relationship
    their level of maturity;
  • whether any duty of care existed;
  • whether there was a serious element of exploitation.

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Familial Sexual Offences Committed by Young People

Sections 25 and 26 Sexual Offences Act 2003 create the offences of sexual activity with a child family member and inciting a child family member to engage in sexual activity. These offences are punishable on indictment with imprisonment for a term not exceeding 5 years. They are ''grave crimes'' for the purposes of section 24 Magistrates' Courts Act 1980 and section 91 Powers of Criminal Courts (Sentencing) Act 2000. Section 25 (5) (b) and 26 (5) (b) purport to restrict the maximum penalty on summary conviction to a maximum of 6 months imprisonment, although this should be read in the light of section 101 (2) Powers of Criminal Courts (Sentencing) Act 2000 to allow a Detention and Training Order of up to 24 months.

Sections 64 and 65 Sexual Offences Act 2003 make it an offence for a person aged 16 or over to penetrate or consent to penetration by a family member who is aged 18 or over. The maximum penalty is imprisonment for a term not exceeding 2 years (sections 64 (5) and 65 (5)).

In cases of sexual activity between siblings, care should be taken to balance the public interest in prosecuting such conduct with the interests and welfare of the victim and the family unit. As a general rule, alternatives to prosecution should be sought where the sexual activity was wholly consensual. The welfare agencies will normally intervene.

Prosecution should be considered where there is evidence of:

  • seduction;
  • coercion;
  • exploitation or violence;
  • a significant disparity in age;

In all cases the effect of prosecution on a victim and family should be taken into account and if the views of the welfare agencies are not included with the file they should be sought.

Rape of a child under 13 (section 5), assault of a child under 13 by penetration (section 6) and causing or inciting a child under 13 to engage in sexual activity that involves penetration (section 8) are indictable only offences with a maximum sentence of life imprisonment. The offences of sexual assault of a child under 13 (section 7), causing or inciting a child under 13 to engage in sexual activity where there has been no penetration (section 8) are punishable on indictment with imprisonment for a term not exceeding 14 years. They are all 'grave crimes' for the purposes of section 24 Magistrates' Courts Act 1980 and s.91 Powers of Criminal Courts (Sentencing) Act 2000.

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Grave Crimes

A 'grave crime' is defined in section 91(1) Powers of Criminal Courts (Sentencing) Act 2000 as:
(a) an offence punishable in the case of a person aged 21 or over with imprisonment of 14 years or more, not being an offence for which the sentence is fixed by law; OR
(b) an offence of sexual assault contrary to section 3 Sexual Offences Act 2003; OR
(c) an offence of child sexual offences committed by children or young persons under 18 contrary to section 13 Sexual Offences Act 2003; OR
(d) an offence of sexual activity with a child family member contrary to section 25 Sexual Offences Act 2003; OR
(e) an offence of inciting a child family member to engage in sexual activity contrary to section 26 Sexual Offences Act 2003.

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 Crown Court may only impose a sentence of detention under section 91 Powers of Criminal Courts (Sentencing) Act 2000 if none of the other available sentences are suitable ( section 91 (3) Powers of Criminal Courts (Sentencing) Act 2000.

In all cases involving a grave crime, the magistrates should be invited to consider the question of venue (Archbold 5-286), before a plea is taken. The 'allocation' provisions in Schedule 13 Criminal Justice and Immigration Act 2008 to introduce to the youth court plea before venue and committal for sentence have not been brought into force.

The reviewing lawyer should bear in mind the principles set out by Leveson J. with the approval of the Vice President of the Court of Appeal in R on the application of H,A and O v Southampton Youth Court [2004] EWHC 2912 Admin when the issue of venue is considered ;

1. The general policy of the legislature is that those who are under 18 years of age and in particular children of under 15 years of age should, wherever possible, be tried in the youth court. It is the court which is best designed to meet their specific needs. A trial in the Crown Court with the inevitably greater formality and greatly increased number of people involved (including a jury and the public) should be reserved for the most serious cases.
2. It is a further policy of the legislature that, generally speaking, first time offenders aged 12 to 14 and all offenders under 12 should not be detained in custody and decisions as to jurisdiction should have regard to the fact that the exceptional power to detain for grave offences should not be used to water down the general principle. Those under 15 will rarely attract a period of detention and, even more rarely, those who are under 12.
3. In each case the court should ask itself whether there is a real prospect , having regard to his or her age, that this defendant whose case they are considering might require a sentence of, or in excess of, two years or, alternatively, whether although the sentence might be less than two years, there is some unusual feature of the case which justifies declining jurisdiction, bearing in mind that the absence of a power to impose a detention and training order because the defendant is under 15 is not an unusual feature.

The Sentencing Guidelines Council Definitive Guideline: Overarching Principles - Sentencing Youths paragraph 12.11 sets out the following guidance:

i) a young person aged 10 or 11 (or aged 12-14 but not a persistent offender) should be committed to the Crown Court under this provision (grave crimes) only where charged with an offence of such gravity that, despite the normal prohibition on a custodial sentence for a person of that age, a sentence exceeding two years is a realistic possibility;
ii) a young person aged 12 -17 ( for which a detention and training order could be imposed) should be committed to the Crown Court under this provision only where charged with an offence of such gravity that a sentence substantially beyond the 2 year maximum for a detention and training order is a realistic possibility.

Prosecutors should assist the court to determine venue in grave crimes by:

  • Drawing to the court's attention relevant sentencing authorities e.g. the Sentencing Guidelines Council Definitive Guideline on Robbery and recent and relevant appellate sentencing cases;
  • Informing the court of the aggravating and mitigating features of the offence;
  • Providing the court with an accurate and agreed list of the youth's previous convictions, warnings and reprimands. This will assist the court to determine both the nature and length of sentence: R (on the application of T) v Medway Youth Court [2003] EWHC 2279 Admin.

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Adult Co-defendants

Where a youth offender is jointly charged with an adult, the charge shall be heard in the adult magistrates' court: Section 46 (1) CYPA 1933. In every either-way or indictable only case, the court must only commit or 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. In considering whether or not a youth offender should be committed for trial to the Crown Court with an adult co-accused, prosecutors should assist the court to exercise its discretion to commit the youth by making representations. The relevant factors include:

the respective ages of the adult and youth; the respective roles of the youth and adult in the commission of the offence; the likely plea; whether there are existing charges against the youth before the Youth Court;
the need to deal with the youth as expeditiously as possible consistent with the interests of justice; and
the likely sentence upon conviction.

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ECHR Points

There is no reason why youths charged with grave crimes should not, where appropriate, be tried in the Crown Court. In R v United Kingdom and T v United Kingdom [1999] the European Court was asked to consider, inter alia, whether the killers of James Bulger had received a fair trial in the Crown Court in contravention of Article 6, and whether the trial itself amounted to inhuman and degrading treatment in contravention of Article 3.

The Court held that the particular features of the Crown Court trial process did not cause suffering going beyond that inevitably engendered by any attempt to deal with the defendants for the offence in question and therefore Article 3 was not contravened.

However, the Court held that the defendants had not received a fair trial in contravention of Article 6 because of the intense media and public interest prior to the trial, the obviously media and public presence in court during the trial and because insufficient adjustments had been made to the Crown Court trial procedure to enable the defendants to participate fully in the trial bearing in mind their ages, level of maturity and intellectual and emotional capacity. The Court did not rule that youth trials in the Crown Court are unfair per se.

As a consequence of the decision of the European Court, Bingham LCJ issued a Practice Direction addressing the arrangements which should be made for the trial of children in the Crown Court (Practice Direction: (Crown Court: Trial of Children and Young Persons) (2000) (Archbold 4-96a). This takes account of the particular concern expressed by the European Court. Prosecutors should be familiar with the provisions of the Practice Direction and should ensure that a copy is annexed to the brief to counsel instructed to conduct a trial of a youth in the Crown Court.

Both the Divisional Court and the Court of Appeal have confirmed that arguments under the ECHR relating to this issue are matters for the Crown Court judge and he or she will have to determine, in his or her discretion, how to conduct the trial, who to allow into the courtroom and to what extent publicity should be allowed, and that a judge who has considered these issues is entitled to rule that a youth could be fairly tried in the Crown Court: (R v Devizes Youth Court ex parte A and others (2000); (R v C (a Minor) TLR 5/7/2000).

Where a youth is to be tried in the Crown Court, whether alone or jointly with other youths or adults, it is essential that a full record is made on the file, and that note copied in the brief to Counsel showing the detailed consideration that has been given to the question of venue .The file endorsement and brief should also include the details of the representations made to the youth court and case law relevant to sentencing.

Sentencing

Courts must have regard to the Sentencing Guidelines Council Definitive Guideline 'Overarching Principles - Sentencing Youths (November 2009).'
This Guideline does not supersede the Sentencing Guidelines Council Definitive Guidelines on Sexual Offences Act 2003 and Robbery, which both set out principles to be applied for young offenders.

In determining the sentence, the key elements for consideration are:

The age of the offender (chronological and emotional); The seriousness of the offence; The likelihood of further offences being committed; The extent of harm likely to result from those further offences. The approach to sentence will be individualistic , Proper regard should be had to the mental health and capability of the young person, and to any learning disability, learning difficulty, speech and language difficulty or other disorder, which is likely to affect the likelihood of these purposes being achieved. (SGC Guideline paragraph 4)

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