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Rape and Sexual Offences - Chapter 12: Sexual Offences and Youths

This guidance is currently out for consultation - see sidebar|Legal Guidance, Sexual offences

PLEASE NOTE - INTERIM GUIDANCE: APPLIES FROM 1 NOVEMBER 2020

Principal Aim of the Youth Justice System

When prosecuting youths who have committed sexual offences prosecutors must have regard to the to the principal aim of the youth justice system which is to prevent offending by children and young persons but also to the welfare of the offender. The overriding purpose of the Sexual Offences Act 2003 is to protect children. It was not Parliament’s intention to punish children unnecessarily or for the criminal law to intervene where it was wholly inappropriate.

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 youth caution or youth conditional caution 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, as detailed below.

Prosecutors are reminded of the need to consider all  the circumstances of the offence and the youth and to apply all relevant CPS polices and guidance before reaching a decision to prosecute. Failure to do so may result in proceedings for judicial review as per R (on the application of E) v Director of Public Prosecutions [2011] EWHC 1465.

Prosecutors should  refer to the relevant offences under the key legislation of this guidance and the section on Sexual Offences and Child Abuse by Young offenders and Familial Sexual offences in the legal guidance on Youth Offenders and the relevant sections of  the Code for Crown Prosecutors.

All cases of rape and serious sexual offences must be reviewed by by a prosecutor who is both a rape and youth specialist prosecutor.  There are additional obligations places upon the prosecutor when considering  cases involving  youth suspects.

Prosecutors should also obtain and consider:

  • The views of the Local Authority Children’s and Young Persons Services
  • If one has already been completed, an assessment or report by the Local Authority or Young Offenders services such as AIM (Assessment, Intervention and Moving on)
  • Background information and history of similar conduct by the parties The views expressed by the victim and the views of the families of all parties
  • Information about the relationship between the parties and the consequences for the vicitm of the decision whether or not to prosecute.

Rape and other offences against children under 13 years (section 5 – 8 Sexual offences Act 2003)

Key Points

  • When considering a case involving an offence by a youth under the age of 18 years against a child under 13 years, mistaken belief that the child under 13 was in fact over 16 years old is not a defence. The principle that a child under 13 years old cannot in law consent applies to offences committed by youths. In such cirumstances action falling short of prosecution may be appropriate. The parents and/or welfare agencies may be  able to deal with the situation informally.
  • If the sexual activity was in fact genuinely consensual and the youth and child under 13 years are fairly close in age and development , a prosecution is unlikely to be appropriate. In R v G (2008) UKHL 37 Lord Hope commented that;
    • “A heavy responsibility has been placed on prosecuting authorities, where both parties are of a similar age, to discriminate between cases where the proscribed activity was truly mutual on one hand and those where the complainant was subjected to an element of exploitation or undue pressure. In the former case more harm may be done than good by prosecuting”
  • There is a fine line between sexual experimentation and offending and in general children under 13 should not be criminalised for sexual behaviour in the absence of coercion, exploitation or abuse of trust.
  • Where 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 or her care a prosecution is like to be in the public interest.
  • Careful regard should be had to:
    • The relative ages of both parties
    • The existence of and nature of any relationship
    • The sexual and emotional maturity of both parties and any emotional or physical effects as a result of the conduct
    • Whether the child under 13 freely consented (even though in law this is not a defence) or a genuine mistake as to her age was in fact made
  • Offences contrary to sections 5 – 8 Sexual Offences Act 2003 are grave crimes for the purpose of section 24 Magisrates Courts act 1980 and section 91 Powers of Criminal Courts (Sentencing) Act 2000.
  • The prosecutor must notify the CCP or DCCP of cases where both the defendant and victim were under the age of 13 years at the time of the offence. This includes cases, which are diverted from prosecution on evidential or public interest grounds.

Child sex offences committed by children or young persons contrary to section 13 Sexual offences Act 2003

Where both parties are under 16 years they may both have commtted a criminal offence. However prosecutors should bear in mind the overriding purpose of the legislation was 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.

Key points

  • Consensual sexual activity would not normally require criminal proceedings in the absence of aggravating features.
  • Relevant considerations include:
    • The respective ages of the parties
    • The existence and nature fo any relationship
    • Their level of maturity
    • Whether there was a serious element of exploitation
  • An offence is not committed if the complainant is 13 or over but under 16 years if the suspect reasonably believed the complainant was over 16 years

Offences contrary to section 13 Sexual Offences Act 2003 are grave crimes.

Children exploited in prostitution

  • Children under 18 exploited in prostitution should be treated as victims of abuse rather than as suspects.
  • Section 1 of the Street Offences Act was amended by section 68(7) of the Serious Crime Act 2015 so that the offence of persistently loitering or soliciting in a street or public place for the purposes of offering services as a prostitute applies only to persons aged 18 or over. In so doing, it recognises children as victims in such circumstances.
  • The young people concerned, whether boys or girls are likely to be extremely vulnerable and present complex emotional problems.  When dealing with young people involved in this activity police should remove them to a place of safety.
  • The sexual exploitation of children for payment should be prosecuted under sections 47-50 of the Sexual Offences Act 2003, which covers the prosecution of those who coerce, exploit and abuse children through prostitution.
  • When reviewing a case involving exploitation of children it is essential that prosecutors are aware of and familiar with the inter-agency guidance entitled “Safeguarding Children and Young people from Sexual exploitation”. The aim of this guidance is to both safeguard and promote the welfare of children, and to encourage the investigation and prosecution of criminal activities by those who coerce, exploit and abuse children.

Familial Sexual Offences

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. Sections 64 and 65 Sexual Offences Act 2003 make it an offence for a person aged over 16 years to penetrate or consent to penetration by a family member who is aged 18 years or over.

Key points

  • 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;
    • significant disparity in age;
  • In all cases, the effect of prosecution on a victim and family should be taken into account.
  • The views of the welfare agencies should be sought.
  • Sections 25 and 26 are grave crimes.
  • Where penetration takes place and the child is under 13 years the appropriate charge should be one of rape of a child under 13 contrary to section 5 Sexual Offences Act 2003 where the maximum sentence is life.

Charging non recent sex offences committed whilst suspect was a youth

Doli Incapax

The rebuttable presumption at common law which applied to all offences committed prior to abolition on 30 September 1998 that a child of not less than 10 but under 14 years was  incapable of committing a crime and was Doli Incapax. The presumption was abolished by section 34 of the Crime and Disorder Act 1998.

The presumption applies to non recent offences prior to enactment of section 34 andwas only rebutted if the prosecution can prove beyond reasonable doubt that the child committed the act with the appropriate intent and that he knew that the act was “seriously wrong” and not merely naughty or mischevious.

When evaluating the evidence in the case a prosecutor must consider how doli incapax can be rebutted. The evidence in the case may provide the means to rebut the presumption (Bevan [2011] EWCA Crim 654).

“Offences” precluded from prosecution by virtue of Doli Incapax can be adduced as bad character as per R v DM [2016] EWCA Crim 674:

Common Law irrebutable presumption

Prior to the commencement of the Sexual Offences Act 1993 on 20 September 1993 an irrebutable common law presumption existed that a boy under the age of 14 was incapable of vaginal or anal intercourse.

A defendant cannot be convicted of rape where the relevant events occurred before 20 September 1993 and at that time he was under 14.

Where the irrebutable presumption applies evidence of penetration can still be adduced and the case can be dealt with as an indecent assault in accordance with R v Williams [1983] 1 QB 320. For a useful discussion of the law around the use of an indecent assault charge as an alternative to rape see the case of R v D [2014] EWCA Crim 1683.

Applying the Code for Crown Prosecutors

When considering non recent offending committed whilst a youth prosecutors should consider the legal guidance on the Public Interest in Prosecuting Non Recent Cases where a Nominal Penalty is likely in addition to the general public interest factors set out in the Code.

Public Interest factors to be considered will include the following :

  • The seriousness of the offence and offending on multiple occasions or against multiple victims. The more serious then the more likely it is to be in the public interest to charge. Minor sexual offences committed whilst a youth should not normally be charged.
  • The impact of the offending on the victim.
  • If it was a single instance of offending, whether the suspect has committed any further offences.
  • The relative ages of the offender and complainant – the greater the age differential the more likely it is to be in the public interest to prosecute.
  • Whether the offending can be properly described as sexual experimentation between young people.
  • Whether there a breach of trust arising out of the relationship between the parties eg was the offender acting as baby sitter for a young child.
  • Whether the offending investigated and dealt with in accordance with the relevant policies at the time of the offence. If so it will not now be in the public interest to prosecute unless there are exceptional circumstances.

The Allocation Decision

There is a statutory presumption that youths under 18 will be tried in the youth court section 24(1) of the magistrates Court Act 1980. A number of exceptions apply which allow for youths to be tried in the Crown court if:

  • the offence is a grave crime as defined by section 91(1) Powers of Criminal Courts sentencing act 2000,
  • the dangerousness provisions apply under the Criminal Justice Act 2003, or
  • the youth is jointly charged with an adult and it is in the interests of justice for the case to be tried together in the Crown Court

The reviewing lawyer should assist the court to determining venue by addressing whether these exceptions apply within the evidential review and drawing to the court’s attention the relevant sentencing authorities, aggravating and mitigating features of the offending and setting out the relevant points to be considered.

The principles to be applied when considering whether the grave crime exception applies to a case involving youths were set out by Leveson J. in the case of R (on the application of H, A and O) v Southampton Youth Court [2004] EWHC 2912 Admin.

When considering likely sentence for the purpose of grave crime arguments prosecutors will also need to refer to The Sentencing Council Definitive Guideline: Overarching Principles – Sentencing Youths paragraph and the youth section of the Legal Guidance. For a comprehensive review of appeal cases in relation to venue see the case of BH (a child) v LLandudno Youth Court.

The Youth Court Bench Book and the new Definitive guidelines contain useful flowcharts for Venue.

S53 Criminal Justice and Courts Act 2015 Introduced a change to permit committal of a child or young person to the Crown Court for sentence following trial in the youth court.

As per R (on the application of the DPP) v South Tyneside Youth Court [2015] EWHC 1455 a youth might be tried in the youth court in relation to an offence falling within Section 91 of the 2000 Act and then committed for sentence of long-term detention in excess of two years under Section 91(3).

Where more than one defendant is involved the allocation decision must be considered separately in relation to each defendant.

ECHR Points

Following European court decisions such as R v United Kingdom, the Court of Appeal has issued Practice Directions addressing the arrangements, which should be made for the trial of children in the Crown Court.

The Criminal Practice Direction and Criminal Procedure Rules govern the conduct of proceedings for vulnerable defendants and provide guidance for measures to assist vulnerable defendants with understanding and with an active participation in proceedings.  This may include the appointment of an intermediary to assist the defendant.

Fitness to Plead in the Youth Court

There is no test for unfitness to plead in the magistrates’ and youth courts. Under ss.37(3) of the Mental Health Act 1983, (MHA) if the defendant is suffering from a treatable “mental disorder” (as defined by s.1, MHA 1983), then the court can impose a hospital order, or a or a guardianship order, if satisfied that the defendant “did the act or made the omission”.

There may be an application for a stay of the proceedings on the basis that the defendant is unable to participate effectively and cannot therefore have a fair trial, relying on art.6 of the European Convention on Human Rights.  This is an exceptional remedy, and one which benches are typically slow to grant, even in the case of young defendants (CPS v. P [2008] 4 All ER 628). Whilst staying the proceedings will call a halt to the prosecution, it offers no disposal to address the concerning behaviour which led to the charge.

Youths Sentencing

The Sentencing Council has published the Children and Young Person Overarching Principles and the offence specific guidelines for sexual offences and robbery. The guidelines applies to all children and young people who are sentenced on or after 1 June 2017, regardless of the date of the offence.

The guideline looks with far greater detail at the age, background and circumstances of each child or young person as well as their welfare. The approach should be focused on the child or young person as opposed to offence focused.

From 1st April 2014 the courts must apply Part 7 of the Sentencing Council’s definitive guidelines when sentencing offenders under the age of 18 years for any of the following offences:

  • Sexual activity with a child (s.9, SOA 2003),
  • Causing or inciting a child to engage in sexual activity (s.10, SOA 2003)
  • Engaging in sexual activity in the presence of a child ( s.11, SOA 2003)
  • Causing a child to watch a sexual act (s.12, SOA 2003)
  • Sexual activity with a child family member (s25, SOA 2003)
  • Inciting a child family member to engage in sexual activity (s.26, SOA 2003)

Each of these offences is subject to a maximum sentence of 5 years.

For all other offences covered by the Sentencing council’s sexual offences definitive guidelines the Courts must have regard to the Sentencing Guidelines Council Definitive Guideline “Overarching Principles – Sentencing Youths (November 2009).

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

Further reading

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