Youth Offenders

• Principle
• Guidance
  • Criminal Justice System
  • Area Youth Justice Co-ordinator (AYJC)
  • Youth Offender Specialist (YOS)
  • Handling of Youth Files
  • Principles Guiding the Decision to Prosecute
  • Youth Cautions
  • Youth Conditional Cautions (YCC)
• Public Interest and Sensitive Issues
  • General Issues
  • Prevalence of the Offence
  • Welfare Powers
  • Hostility and Hate Crime
  • Offending Behaviour in Children's homes
  • Behaviour Management policies
  • The Decision to Prosecute
• Psychoactive Substances Act 2016
• County lines
• Public Order Offences
  • School Bullying
  • Motoring Offences
• Sexual Offences and Child Abuse by Young Offenders
  • Rape and other offences against children under 13 (sections 5 to 8 Sexual Offences Act 2003)
  • Child sex offences committed by children or young persons
  • Prostitution
  • Familial Sexual Offences
• Section 1 of the Voyeurism (Offences) Act 2019 – ‘upskirting’
• Youths with Mental Disorders, including Learning Disabilities
  • Public Interest Considerations in relation to Mentally Disordered Offenders
  • Trial Procedure for Youths with mental disorders including learning disabilities
• Venue: Policy Guidance on Venue Representations where youths are charged with offences capable of being tried on indictment
  • Dangerousness
  • Grave Crimes
  • Adult Co-defendants
• ECHR Points
• Sentencing
• Referral Order
• Youth Rehabilitation Order
• Detention and Training Order
• Determining Age
• Jurisdiction of the Youth Court when defendant attains 18
• Sentencing: Crossing a relevant age threshold

Useful Links

• Department for Children Schools and Families Referral Order Guidance 2009
• Youth Justice Board: Making it Count in Court 2009
• Sentencing Guidelines Council Definitive Guideline: Overarching Principles -Sentencing Youths 2009

Relevant Guidance Elsewhere

For guidance concerning the remand provisions for Youth Offenders refer to the guidance on Bail.

Principle

The CPS is committed to ensuring that the special considerations which apply to cases involving a young offender are enshrined in its working practices and form part of the training of its prosecutors.

The key considerations governing the decisions made by Crown Prosecutors in dealing with youths are those contained in:

• Section 44 of the Children And Young Persons Act 1933 (Archbold 5-232), which requires the courts to have regard to the welfare of a young person;
• Section 37 of the Crime And Disorder Act 1998 (Archbold 5-231), which requires the principal aim of agencies involved in the youth justice system to be the prevention of offending by young persons; and
• The Code for Crown Prosecutors, which states that Crown Prosecutors must consider the interests of a youth, amongst other public interest factors, when deciding whether a prosecution is needed.
• Standards for children in the youth justice system

Guidance

Criminal Justice System

The CPS is one of several agencies involved within the CJS that deals with youths.

Effective partnerships within the criminal justice system will contribute to securing real improvements in the youth justice system and will help to give effect to Government policy. Such partnerships require mutual cooperation and understanding.

All Areas are encouraged to participate in local inter-agency groups with representatives from the Youth and Crown Courts, Youth Offending Team managers, police, CPS, appropriate defence representatives and Victim Support Service co-ordinators.

These groups should be responsible for the implementation of youth justice initiatives. For example:

• Contributing to a reduction of delay in the youth justice system;
• Monitoring of the expedited file system, i.e. the level of guilty pleas;
• Use of and checks with the Case Tracker Systems; and
• Developing good local practice in line with Youth Justice Board recommendations.

Area Youth Justice Co-ordinator (AYJC)

The CCP or DCCP may appoint one or more AYJCs. It will be a matter for the CCP or DCCP to decide what functions the AYJC will carry out, but they may include the following:

• Being a 'Service Ambassador' providing advice to CCPs and DCCPs on youth matters and liaising at a strategic level on behalf of the CCP/DCCP with other agencies;
• Being a focal point for advice on good practice within the Area;
• Being the point of contact for CPS Headquarters;
• Having responsibility for monitoring achievements against national and locally agreed targets in the magistrates, youth and Crown Court;
• Co-ordinating the formulation and implementation of the training of other lawyers in the Area.

The AYJC should be:

• An experienced Youth Offender Specialist; and
• Able to carry out the functions of a Youth Offender Specialist.

Youth Offender Specialist (YOS)

A YOS will be approved by the CCP/DCCP or Unit Head.

The YOS will carry out the following functions:

• Undertaking the review of files involving youth offenders and taking all major decisions in relation to those files;
• Making regular appearances in the Youth Court; and
• Together with the Area Youth Justice Co-ordinator, taking part in the formulation and implementation of the training of other lawyers.

In order to be approved as a YOS, a lawyer must:

• Be a Senior Crown Prosecutor with adequate experience and appropriate skills; and
• Have undertaken the Youth Offender Training Course.

Additionally, whenever possible, specialists should be volunteers expressing an interest in dealing with youth offender cases.

Handling of Youth Files

All cases involving youth offenders must be dealt with expeditiously and avoid delay, which has at its core the principle that there is little point in conducting a trial for a young offender long after the alleged commission of an offence when the offender will have difficulty in relating the sentence to the offence.  To maximise the impact on the youth offender, the case must be dealt with as soon as possible.

All prosecutors should be able to prosecute Youth Courts and deal with youths connected with adults in the magistrates' court.

All prosecutors should be able to carry out an initial review of files prior to the first hearing to enable a youth offender to enter a guilty plea if offered.

A Youth Offender Specialist (YOS) will undertake the major reviews of files involving youth offenders and take all major decisions in relation to those files.

Whenever possible, Youth Remand Courts should be prosecuted by a YOS, who will be able to review all the files that are appearing in that court.

Prosecutors at court should liaise with the other CJS Agencies and in particular the Youth Offending Team. See Youth Justice Board: Making it Count in Court 2009.

Principles Guiding the Decision to Prosecute

Prosecutors who are not Youth Offender Specialists must refer the decision to prosecute or divert in any case to a Youth Offender Specialist.

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.

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 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).

When applying the public interest factors in the Full Code Test in a case involving a youth, paragraph 4.17 b) will always be a particularly important one. This paragraph provides that:

"A prosecution is less likely to be required if...the seriousness and the consequences of the offending can be appropriately dealt with by an out-of-court disposal which the suspect accepts and with which he or she complies."

This is a factor which will always carry a special weight in the case of youths who are at a very early stage of their offending, and can be traced back to historic police practice (as set out, for example, in Home Office Circular 18/1994) of starting from a presumption of diverting youths away from the courts where possible.

For those youths for whom formal diversion is not an option, it is still important to ensure that a prosecution is only brought in circumstances where this is a proper and proportionate response. The separate Legal Guidance chapter on Minor Offences - Prosecution Guidance and its steer towards the taking of a common sense approach to less serious cases has direct application to a number of youth matters. Alternative options, including restorative interventions, Acceptable Behaviour Contracts and internal sanctions such as school disciplinary measures may be available, and sufficient to satisfy the public interest without a prosecution and the statutory duty to prevent offending (section 37 Crime and Disorder Act 1998).

Youth Cautions

Reprimands and warnings for youths were abolished (section 135 (1) Legal Aid Sentencing and Punishment of Offenders Act 2012) nationally with effect from 8 April 2013 and replaced with youth cautions (sections 66ZA and 66ZB Crime and Disorder Act 1998, inserted by section 135 (2) Legal Aid Sentencing and Punishment of Offenders Act 2012). Youth cautions are primarily administered by the police, but prosecutors should understand the principles that are applied.

A youth caution is a formal out-of-court disposal as set out in sections 66ZA and 66ZB of the Crime and Disorder Act  1998 the Ministry of Justice/Youth Justice Board Guidance on Youth Cautions (April 2013) , the Ministry of Justice/YJB Youth Out-of-Court-Disposal Guide for Police and Youth Offending Services (April 2013) and ACPO Youth Offender Case Disposal Gravity Factor System (March 2013)

Youth cautions are intended to provide a proportionate and effective response to offending behaviour and can be used for any offence provided that the statutory criteria are satisified:

• the police are satisfied that there is sufficient evidence to charge the youth with an offence;
• the youth admits the offence to the police;
• the police do not consider that the youth should be prosecuted or given a youth conditional caution for the offence.

The police cannot issue a youth caution for an offence that is indictable only in the case of an adult without the authority of the CPS.

There is no statutory restriction on the number of youth cautions that a youth can receive, and a youth may receive a youth caution even if he or she has previous convictions, reprimands, warnings, youth cautions and youth conditional cautions.

The police will take into account the offending history and the seriousness of the offence when deciding whether to issue a youth caution.

Offence seriousness is determined by reference to the ACPO Gravity Matrix, which sets out the most prevalent offences, and provides them with a score of 1, 2, 3 or 4. The score may be raised or lowered by one level according to aggravating and mitigating factors which are set out in the Matrix.

An offence that attracts a gravity score of 2 or 3 will usually result in a youth being given a youth caution. If the offending behaviour cannot be satisfactorily addressed by a youth caution, the police will consider a youth conditional caution.

The police must refer a youth who has received a youth caution to the youth offending team (section 66ZB (1) Crime and Disorder Act 1998).

The youth offending team:

• may assess a youth who has never had a youth caution or a youth conditional caution and may arrange a rehabilitation programme for the youth (section 66ZB (3) Crime and Disorder Act 1998);
• must assess a youth who has had a youth caution or a youth conditional caution and must , unless they think it inappropriate to do so, arrange a rehabilitation programme for the youth (section 66ZB(2) Crime and Disorder Act 1998.

Prosecutors should bear in mind that although the ACPO Guidelines are of primary relevance, they are not the final arbiter of whether to prosecute, offer an out-of-court disposal or take no formal criminal justice action. For those youths for whom formal diversion is not an option, it is still important to ensure that a prosecution is only brought in circumstances where this is a proper and proportionate response. The separate Legal Guidance chapter on Minor Offences Prosecution Guidance and its steer towards the taking of a common sense approach to less serious cases has direct application to a number of youth matters. Alternative options, including restorative interventions, Acceptable Behaviour Contracts and internal sanctions such as school disciplinary measures may be available, and sufficient to satisfy the public interest without a prosecution and the statutory duty to prevent offending (section 37 Crime and Disorder Act 1998). See also the legal guidance on School Bullying and Offending Behaviour in Children's Homes elsewhere in the Youth Offenders guidance.

Where a case has proceeded to court, but the prosecutor decides that a youth caution or youth conditional caution can be justified, the matter should be adjourned for consideration of that disposal. Prosecutors are reminded that an admission of guilt to the police is essential before a youth caution can be given. Once a young person has been correctly charged it is likely to be only in exceptional circumstances that a youth caution or youth conditional caution will be given.

When adjourning a case for such consideration, prosecutors should bear in mind that there may be factors unknown to the CPS that could affect the disposal of the case. Prosecutors should not raise any expectation that the case will not proceed if a youth caution or youth conditional caution is not issued.

If the offence is one covered by the Sexual Offences Act 2003, the youth may be subject to the notification requirements in section 80 (refer to Notification requirements elsewhere in this guidance).

Bindovers should be rare and the reasons for their use should be fully endorsed.

Youth Conditional Cautions (YCC)

Section 48 and Schedule 9 Criminal Justice and Immigration Act 2008 amend section 65 Crime and Disorder Act 1998 and insert sections 66A to H Crime and Disorder Act 1998 with the effect that a youth conditional caution can be given to a youth provided that the following conditions are satisfied:

• The authorised person has evidence that the youth has committed an offence;
• The prosecutor is satisfied that there is sufficient evidence to charge the youth with the offence and that a youth conditional caution should be given in respect of the offence;
• The youth admits the offence to an authorised person;
• The authorised person has explained the effect of the YCC to the youth and has warned him or her that failure to comply with any of the conditions may result in a prosecution. If the youth is 16 or under this must be done in the presence of an appropriate adult;
• The youth signs a document that contains details of the offence, an admission that he committed the offence, consent to the YCC and the conditions attached to the caution.

Youth conditional cautions are available for any offence, except an offence of hate crime or domestic violence that has a gravity core of 4, but a youth conditional caution can only be given for an indictable only offence on the authority of the CPS. The police may issue a youth conditional caution for any either way or summary offence, except an offence of hate crime or domestic violence with a gravity score of 4, without reference to the CPS.

The Youth Conditional Caution is no longer restricted to youths with no previous convictions and there is no statutory restriction on the number of youth conditional cautions that a youth can receive. However, the Director's Guidance on Youth Conditional Cautioning (2nd Edition) explains that a record of previous offending does not automatically rule out the possibility of a youth conditional caution especially where there have been no similar offences during the last two years or where it appears that the youth conditional caution is likely to change the pattern of offending behaviour and prevent reoffending. However where a youth has been given two youth conditional cautions and continues to offend, a further youth conditional caution is unlikely to be effective in preventing offending and should not be offered as an alternative to prosecution.

When a case has proceeded to court, but the prosecutor decides that a youth caution or youth conditional caution can be justified, the matter should be adjourned for consideration of that disposal. Prosecutors are reminded that an admission of guilt to the police is essential before a youth caution or youth conditional caution can be given. Once a youth has been correctly charged it is likely to be only in exceptional circumstances that a youth caution or youth conditional caution will be given.

Public Interest and Sensitive Issues

General Issues

Guidance is given below on specific areas of work commonly raising sensitive or difficult issues. It is not intended to replace guidance given elsewhere in the Legal Guidance. For example, guidance on charging practice can be found in the chapter that covers the specific offence under consideration.

Prevalence of the Offence

If the local police force proposes from time to time to devote substantial resources to the investigation of a particularly prevalent offence, the police should be encouraged to discuss this in advance with the CPS. Every case will still finally be judged on its facts and its own merits. However, it will be appropriate to consider the police objectives and the impact on the community of the offending when reviewing the public interest factor.

Welfare Powers

Proceedings should not be taken against a youth offender solely to secure access to the welfare powers of the court.

Hostility and Hate Crime

A relatively minor incident may be more serious if there is evidence of racial or religious hostility particularly in the context of a number of incidents of violence or intimidation towards black and minority ethnic communities. Prosecutors should have regard to the availability of racially and religiously aggravated offences.

The existence of a clear racial motivation in an offence or of hostility based on the victim's ethnic or national origin or religion should always be regarded as an aggravating feature pointing towards prosecution, assuming that the evidence itself justifies proceedings.

Offending Behaviour in Children's homes

The decision to prosecute looked after children for low level offences committed within a children's home is a major decision and should be taken by a youth specialist, who, wherever possible, will be a volunteer who has attended the CPS Youth Offender Specialist Course and is a Senior Crown Prosecutor.

A national protocol to reduce the criminalisation of looked after children and care leavers was published in December 2018. This provides a framework for criminal justice and local agencies to co-develop local arrangements in order that they can respond consistently, and share necessary information, to help achieve better outcomes for looked after children and care leavers.

This guidance is intended to assist youth specialists in determining where the public interest lies when it is alleged that a looked after child has committed an offence in the children's home where he or she lives. It is not intended to apply to all offences committed by looked after children; although some of the principles may be helpful when applying the public interest stage of the Full Code Test to offences committed outside the home.

Children and young people who live in children's homes are at a high risk of offending behaviour because:

• Many looked after children are between the ages of 14 and 17, which is regarded as the peak offending age range
• In some children's homes they are likely to be living with young people who have been remanded to local authority accommodation, and may be susceptible to group offending behaviour
• They may be living in accommodation far from their home, so may lack support from friends and family
• Many looked after children display challenging behaviour, which may be a reaction to past experiences of abuse and neglect; and/ or have been diagnosed as experiencing Attention Deficit and Hyperactivity Disorder and Oppositional Defiant Disorder. Their offending behaviour may be caused by or otherwise linked with the disorder
• Their behaviour is likely to be more challenging and demanding because of their family experience, the breakdown of foster placements and frequent moves from other children's homes
• Living in a group with other challenging and demanding children of the same age gives rise to greater potential for conflict , bullying and peer group pressure

The police are more likely to be called to a children's home than a domestic setting to deal with an incident of offending behaviour by an adolescent. Specialists should bear this in mind when dealing with incidents that take place in a children's home. However, where offending behaviour occurs in a family context, the CPS Domestic Violence Policy would apply wherever a partner, sibling, parent or other family member experiences violence at the hands of a youth. It is important that all people feel safe in the place that they live, whether that is in a family home or children's home and that they have confidence in the criminal justice system to intervene and protect them where this is necessary.

A criminal justice disposal, whether a prosecution, youth caution or youth conditional caution, should not be regarded as an automatic response to offending behaviour by a looked after child, irrespective of their criminal history. This applies equally to persistent offenders and youths of good character. A criminal justice disposal will only be appropriate where it is clearly required.

Informal disposals such as restorative justice conferencing, reparation, acceptable behaviour contracts and disciplinary measures by the home may be sufficient to satisfy the public interest and to reduce the risk of future offending.

Behaviour Management policies

All children's homes, whether they are run privately or by the local authority or voluntary sector must comply with the Children's Home Regulations 2001, which are mandatory, and the National Minimum Standards, which are issued by the Secretary of State under section 23 Care Standards Act 2000. These are minimum standards, not examples of good practice, and Homes should aspire to exceed them. Copies of these documents are available at:

• https://www.education.gov.uk/publications/standard/publicationDetail/Page1/DFE-00030-2011
• http://www.legislation.gov.uk/ukpga/2000/14/section/23

Each home must have a written behaviour management policy that sets out the measures of control, restraint and discipline which may be used in the children's home and the means whereby appropriate behaviour is to be promoted in the home. A copy of this policy and a statement from the home setting out how the policy has been applied to this incident should accompany any request for advice on charging.

Each home should have a clear written policy, procedures and guidance for staff based on a code of conduct that sets out control, discipline and restraint measures that are permitted and must reinforce positive messages to children for the achievement of acceptable behaviour. The consequences of unacceptable behaviour should be clear to staff and children and must be appropriate to the age, understanding and individual needs of the child. It must also be recognised that unacceptable or challenging behaviour may be the result of illness, bullying, disabilities such as autism, ADHD or communication difficulties.

Standard 22 National Minimum Standards for Children's Homes requires staff to respond positively to acceptable behaviour, and where the behaviour of children is regarded as unacceptable by staff, is responded to by constructive, acceptable and known disciplinary measures approved by the registered person. Control and disciplinary measures should encourage reparation and restitution. Corporal punishment, deprivation of food and drink and punishing a group for the behaviour of an individual may not be used as a disciplinary measure, and financial penalties are restricted to the imposition of a reasonable sum, which may be paid by instalments, by way of reparation (Rule 17 CHR 2001).

Unless the registered person can show it is inappropriate, the home should also have procedures and guidance on police involvement in the home, which has been agreed with the local police. Staff should know about the agreement with the police and should be clear when the police should be involved. (paragraph 22.15 National Minimum Standards for Children).

The Decision to Prosecute

Prosecutors are reminded of the need to consider all the circumstances surrounding the offence and the circumstances of the youth before reaching a decision and to apply all relevant CPS policies and documents. Failure to do so may result in proceedings for judicial review: R v Chief Constable of Kent and Another ex parte L, R v DPP ex parte B (1991) 93 Cr App R 416.

The 10 point checklist for offences in Children’s homes setting out the required information before a proper decision can be taken on looked after children (this includes all voluntary arrangements, foster placements and secure training centres).

Factors that should be considered include;

Prosecutors should consider all of the aggravating and mitigating features when deciding on the appropriate outcome.

Aggravating features include:

• The offence is violent or induces the genuine fear of violence in the victim
• The offence is sexual
• The offence is motivated by hostility based on the gender, sexuality, disability, race, religion or ethnicity of the victim
• The victim is vulnerable
• The damage or harm caused is deliberate and cannot be described as minor
• The offence forms part of a series of offences
• Informal measures have been ineffective in preventing offending behaviour

Mitigating features include:

• The damage or harm caused is at the lower end of the scale and has been put right
• Appropriate action has already been taken under the disciplinary procedure or other informal disposal
• Genuine remorse and apology to the victim
• The behaviour is a symptom of a disorder or illness that cannot be controlled by medication or diet. Refer also to Mentally Disordered Offenders
• Care should be taken where it appears that the youth has deliberately refused medication or deliberately consumed a substance knowing that his or her behaviour will be affected.
• Isolated incident or out of character
• The young person is under extreme stress or appears to have been provoked and has overreacted

The reasons for the charging/diversion decision should be clearly recorded and show the factors that have been considered by a youth specialist to determine how the public interest is satisfied.

Psychoactive Substances Act 2016

The Psychoactive Substances Act 2016 (Commencement) Regulations 2016 (SI 2016) brought the provisions of the Psychoactive Substances Act 2016 into force on 26th May 2016, in so far as they were not already in force.

The Psychoactive Substances Act 2016 introduces a legal definition of a psychoactive substance, which will be used to enforce a range of criminal offences and civil sanctions. The criminal offences are:

• producing a psychoactive substance
• supplying, or offering to supply a psychoactive substance
• possession of a psychoactive substance with intent to supply
• importing or exporting a psychoactive substance
• possession of a psychoactive substance in a custodial institution

The maximum sentence, on conviction on indictment, for the production, supply, possession with intent to supply and import/export offences is seven years imprisonment. The maximum sentence, on conviction on indictment, for the offence of possession in a custodial institution is two years imprisonment.

A custodial institution refers to

(a) a prison;
(b) a young offender institution, secure training centre, secure college, young offenders institution, young offenders centre, juvenile justice centre or remand centre;
(c) a removal centre, a short-term holding facility or pre-departure accommodation;
(d) service custody premises.

For full information on offences arising from the Psychoactive Substances Act 2016, advice on charging practice and factors to consider when reviewing such cases, please refer to the Legal Guidance on Psychoactive Substances.

County Lines

'County Lines' is a national issue which involves the exploitation of vulnerable young people and adults by violent gang members in order to move and sell drugs across the country.

The National Crime Agency has identified that there is growing evidence of city-based organised crime gangs extending their drug dealing activity into new areas, many of which are coastal towns. The gangs recruit vulnerable people, often children, to act as couriers and to sell drugs.

'County Lines' operates by gangs from cities, in particular London, introducing a telephone number in a new area to sell crack and heroin directly at street level. Potential buyers telephone the number and local runners are dispatched to make deliveries via a telephone 'relay or exchange' system. The 'runners' are invariably children, often boys aged 14 to 17 years, who are groomed with money and gifts and forced to carry out day to day dealing. Runaway and missing children are also used by gangs to expand inner city drugs empires into county towns. Children as young as 11 years of age have been reported as being recruited into the highly sophisticated gangs.

Gang members enter into relationships with young women in order to secure a location for drugs to be stored in the new area. In addition, violence is used against drug users to coerce them to become runners, enforce debts, and use their accommodation as an operating base.

Prosecutors are encouraged to consider all available charges when considering a prosecution in connection with 'County Lines' offending.

The Modern Slavery Act 2015 may provide opportunities to consider the circumstances of 'County Line' offending, particularly where there has been deliberate targeting, recruitment and significant exploitation of young and vulnerable people. Prosecutors should, however, be alert to the challenge of securing a conviction for a Modern Slavery Act offence.

Public Order Offences

The general principles of the Code and the reprimand and final warning system should be applied. However, there are aggravating features which may increase the need to prosecute in borderline cases. These include:

• where the incident in question is not isolated but is either prevalent within an area or is part of a wider incident or series of incidents;
• where the aggression displayed by members of the group, whether verbal or physical, is directed outside the group at members of the public (such as shopkeepers), and especially so if their attentions are directed at ethnic minorities, the elderly, or other vulnerable people

Occasionally the police locally may target a particular type of conduct for special attention in an attempt to discourage it. This will have an effect on the number of cases recommended by them for prosecution.

The police should be encouraged to discuss the implications of such a campaign in advance with the CPS. Whilst every case will be considered on its merits, the force objective should be taken into account, as a public interest factor, when deciding whether or not to institute or continue proceedings.

School Bullying

Prosecution may not be necessary because of other available alternatives, but there will be cases in which a prosecution is needed in the public interest.

In cases of serious or persistent bullying, prosecutions must be carefully considered. Such cases usually involve one pupil or a group of pupils using their strength or power to induce fear in the victimised pupil, whether or not for a particular purpose such as extortion of money or valuables. They may involve verbal persecution and abuse, physical assault or the threat of it, or even the degradation or humiliation of the victim. Such attacks tend to be systematic and persistent leading to the oppression of a fellow pupil and his or her virtual isolation from the support and friendship of others.

It is important to differentiate occasional jibes from systematic bullying of children because of ethnic origin, religion, gender, sexual orientation or disability.

In all cases relevant considerations will include:

• any background to the incident in question including any history of bullying of the same victim by the offender or generally;
• the attitude and behaviour of the offender and the offenders parent(s) or guardian(s);
• the effect of the behaviour on the victim;
• any internal remedies already taken by the school whether in connection with the incident or in the past, such as, where the victim and offender no longer attend the same school.

It is important to ensure that the seriousness of the conduct is accurately and appropriately reflected in the seriousness of the charge.

If school bullying incidents are regularly referred for prosecution (particularly if they are appropriate for youth caution or youth conditional caution), it may well be necessary for the AYJC/local CPS to contact the local police department and the YOT responsible for youth offender cases with a view to them examining the policies of the local schools and the police.

All schools should have internal procedures and strategies for dealing with these incidents. It may be necessary to explore with the police and the YOT whether certain schools are in fact accepting their responsibility in this area fully.

In such cases the file should include information on the background of the incident, any previous incident and any disciplinary measures taken by the school.

If the incident has taken place outside school but is connected to conduct occurring at school the same information described above is relevant. Schools often feel unable to act in these circumstances.

Motoring Offences

All offences, including motoring and minor traffic offences are included in the reprimand/final warning scheme. However, under the Home Office Guidelines, Where a young person commits a minor traffic offence, a fixed penalty notice remains an appropriate response for 16 and 17 year olds.

The police deal with the majority of minor motoring offences without reference to CPS. However, when dealing with minor traffic offences a prosecutor should bear in mind the effects of the reprimand/final warning scheme and consider carefully the impact of his decision on the youth.

Some examples of the impact of the reprimand/final warning scheme are as follows:

A final warning for an offence of no insurance will prevent a youth from further statutory diversions and is likely to result in a youth being prosecuted for any other offence he or she commits.

However, a successful prosecution for no insurance is not a recordable offence and therefore will probably mean that a youth will not be prosecuted for the next offence that he commits. It will cause penalty points to be endorsed on a youth's licence that could result in the licence being suspended by DVLA and the youth being required to re-take the driving test.  Such a consequence may have a substantial impact on the youth's employment prospects.

In adult cases, it is possible to cite previous convictions/cautions for use within the s.12 procedure under the Road Traffic Act. However, the Road Traffic Act and Magistrates Court Act procedures for citing previous convictions do not apply in the Youth Court. However, Rule 10 of the Magistrates Court (Children and Young Persons) Rules 1992 provides that the Court should take into account the general conduct of the youth on sentence. The existence of a previous reprimand/final warning is relevant information.

The police should therefore serve a Notice of Intention to Cite Previous Reprimands and Final Warnings under the Rule 10 of the Magistrates Court (Children and Young Persons) Rules 1992 with the summons. Failure to give such notice will mean that the Court will not be able to take into account the previous reprimand/final warning, which may materially affect the sentence.

Sexual Offences and Child Abuse by Young Offenders

This guidance expands on, and should be read in conjunction with other specific sections elsewhere in Legal Guidance, such as Rape and Sexual Offences. 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 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, 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 Refer to Disclosure of Material to Third Parties.

Rape and other offences against children under 13 (sections 5 to 8 Sexual Offences Act 2003)

CCPs or DCCPs must be notified of any such case where there are both defendants and victims 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.

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 section 91 Powers of Criminal Courts (Sentencing) Act 2000.

A mistaken belief that the child under 13 was 16 or over and consented to intercourse is not a defence to an allegation of rape of a child under 13, assault of a child under 13 by penetration, sexual assault of a child under 13 or causing or inciting a child under 13 to engage in sexual activity contrary to sections 5 to 8 Sexual Offences Act 2003 respectively.

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 Children's and Young People's 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 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 in fact freely consented (even though in law this is not a defence) or a genuine mistake as to her age was in fact made;
• whether any element of seduction, breach of any duty of responsibility to the girl 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.

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.

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.

Refer to Sexual Offences guidance

Child sex offences committed by children or young persons

Section 13 of the 2003 Act makes it an offence for a youth under 18 to have sexual activity with a child under 16, cause or incite a child under 16 to engage in sexual activity, engage in sexual activity in the presence of a child under or cause a child under 16 to watch a sexual act. 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.

An offence is not committed if the child is over 13 but is under 16 and the youth has a reasonable belief that the child is 16 or over.

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 Parliaments intention to punish children unnecessarily or for the criminal law to intervene where it was wholly in appropriate. 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.

Refer also to Sexual Offences.

Prostitution

Youth offender prostitution, whether involving young girls or boys, can be one of the most difficult types of cases to deal with. The young people concerned are likely to be extremely vulnerable and present complex emotional problems.

When reviewing a case involving youth offender prostitution it is essential that you are aware of and familiar with the inter-agency guidance entitled Safeguarding Children Involved in Prostitution, published in 2000. See also Prostitution, elsewhere in the Legal Guidance.

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 through prostitution. One of the key purposes of the guidance is to encourage the agencies and professionals involved to treat a child (defined as a boy or girl under the age of 18) involved in prostitution as primarily a victim of abuse.

Paragraph 6.21 of the guidance states that the approach to be adopted in cases of child prostitution is one of diversion of the child from the criminal justice system and a welfare approach is to be adopted. At paragraphs 6.21-6.30, the guidance sets out the approach to be followed when deciding whether it will be appropriate to prosecute or administer a reprimand or final warning to a child involved in prostitution. This section of the Guidance replaces the Home Office Circular 109/50 insofar as the Circular dealt with the cautioning of a child, male or female, under the age of 18 involved in prostitution.

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. 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.

Section 1 of the Voyeurism (Offences) Act 2019 – ‘upskirting’

Section 1 of the Voyeurism (Offences) Act 2019 inserts two new offences into the Sexual Offences Act 2003, at section 67A. This criminalises certain acts of voyeurism, specifically the behaviour known as “upskirting”. These offences are triable either way and carry a maximum 2-year prison sentence. Upskirting” is a colloquial term referring to the action of placing a camera or mobile phone beneath a person’s skirt to take a voyeuristic photograph without their permission.

The Voyeurism (Offences) Act 2019 received Royal Assent on 12 February 2019 and the new offences will apply to England and Wales. They will come into effect on 12 April 2019 and will not be retrospective.

When determining if a charge under this legislation is appropriate prosecutors need to consider all the circumstances surrounding the offence, the circumstances of the youth and all of the aggravating and mitigating features when deciding on the appropriate outcome. Specifically for this offence, consideration should be given as to whether this is a pattern of behaviour towards this or other victims, is sexually motivated, or whether it is an isolated incident or practical ‘joke’.

The reasons for the charging/diversion decision should be clearly recorded and show the factors that have been considered by a youth specialist to determine how the public interest is satisfied. Consideration should be given the

Refer also to Voyeurism (Offences) Act 2019 

Youths with Mental Disorders, including Learning Disabilities

A youth offender who is mentally disordered is doubly vulnerable. Prosecutors should have regard to the chapter in this manual concerning mentally disordered offenders.

The term mental disorder is used in the Mental Health Act 1983to mean any disability or disorder of the mind. (Archbold 5-887). For general guidance on mentally disordered offenders refer to Mentally Disordered Offenders elsewhere in the Legal Guidance. The Mental Health Act 1983 is primarily concerned with compulsory treatment, which will be inappropriate in the majority of cases involving youth offenders.

Public Interest Considerations in relation to Mentally Disordered Offenders

Mentally disordered offenders will often commit offences that are more of a public nuisance than a danger to the public. However, in serious cases where the offender is a danger to the public, the public interest is likely to require a prosecution. In determining where the public interest lies the prosecutor should look particularly to:

• the seriousness of the offence;
• the circumstances of any previous offending;
• the nature of the youth offender's mental disability or disorder;
• the likelihood of repetition; and
• the availability of suitable alternatives to prosecution.

Reprimands and final warnings can be problematic. Both require sufficient evidence and full recognition of guilt by the offender.

Particular difficulties can arise when mens rea is a component of the offence. The prosecutor must be satisfied that any admissions are genuine. Particular care must be taken when considering whether to administer a reprimand or final warning in a case relying on admissions.

It may be that in a proportion of cases, which might otherwise have attracted such a disposal, that this is not an advisable option, either because of doubts about the truth of any admissions made (in cases where there is little or no supporting evidence), or because of the defendants level of understanding. In such cases taking no further action will usually be the only appropriate way of dealing with the matter short of prosecution. Prosecutors should try and ensure the police are alert to these difficulties and guard against the inappropriate use of the reprimand and final warning system.

The file should include the opinions of the relevant welfare agencies, particularly about the offender's stage of development or understanding of the offence and the perceived likelihood of repetition, the likely effect of proceedings on his or her mental state and the available welfare options. It is particularly important in remand cases that the prosecution is furnished with as much information as possible before making representations to the court. If necessary, an application should be made for the case to be put back until information is available. Information may be obtained from a variety of sources, including criminal justice mental health teams, criminal justice liaison and diversion schemes and the youth offending team. A plea should not be accepted until the prosecutor has all the available information and has reviewed the file.

Trial Procedure for Youths with mental disorders including learning disabilities

Trial Procedure

The following trial procedure for youths with learning disabilities was laid down by the Administrative Court in R on the application of TP v West London Youth Court [2005] EWHC 2583 Admin.

Neither youth nor limited intellectual capacity necessarily leads to breach of the Article 6 ECHR right to effectively participate in a trial. The minimum requirements for a fair trial are that:

• The youth has to understand what he is said to have done wrong
• The court must be satisfied that the youth had the means of knowing that an act or omission was wrong at the time of the act or omission
• The youth had to understand what, if any, defences were available to him
• The youth must have a reasonable opportunity to make relevant representations if he wished to do so
• The youth must have the opportunity to consider what representations he wished to make once he had understood the issues involved.

A trial should not be abandoned before all practical steps to overcome the difficulties have been exhausted.

The youth court should take appropriate steps to enable a youth with learning difficulties or mental impairment to participate in his trial including:

• Keeping the youths cognitive functioning in mind
• Using concise and simple language
• Having regular breaks
• Taking additional time to explain court proceedings
• Being proactive in ensuring the youth has access to support
• Explaining and ensuring the claimant understands the ingredients of the charge
• Explaining the possible outcomes and sentences
• Ensuring cross examination is carefully controlled so that questions are short and clear and frustration is minimised.

The judge has a continuing jurisdiction to stay proceedings for abuse of process. If it becomes apparent during the course of the hearing that the claimant is unable effectively to participate, the judge can stay the proceedings at that point. This is better than staying the prosecution at the outset before it is known whether steps can be taken to enable a fair trial to proceed.

In CPS v P [2007] EWHC 946 (Admin), the Administrative Court gave guidance on the procedure to be followed in youth courts when the defence raises issues of capacity.

The Administrative Court answered the following questions posed by the District Judge:

Question: Where it is established that a person would be unfit to plead due to their mental capacity in a court of higher authority is it an abuse of process to try them thereafter for subsequent criminal acts?

Answer: The fact that a court of higher authority has previously held that a person is unfit to plead does not make it an abuse of process to try that person for subsequent criminal acts. The issue of the child's ability to participate effectively must be decided afresh. A child in early adolescence might well develop significantly over a relatively short period of time. It follows that just because the child is agree to be unfit to plead or unable to take part in a trial on one occasion does not mean that he will still be unfit or unable on another.

Question: Where the magistrates' court establishes that a person cannot be tried in accordance with R v Barking Youth Court [2002] EWHC Admin 734 and then undertakes an inquiry into whether a defendant did the act alleged, is that a criminal trial?

Answer: Where the court decides to proceed to decide whether the person did the acts alleged, the proceedings are not a criminal trial.

Question: At what point in proceeding is it necessary for the court to make a decision in accordance with the procedure set out in R v Barking Youth Court [2002] EWHC Admin 734?

Answer: The court may consider whether to proceed to decide the facts at any stage. It may do so before hearing evidence or it may stop the criminal procedure and switch to the fact-finding procedure at any stage.

Question: Whether the District Judge erred in concluding on the evidence that the defendant did not have the mental capacity to effectively participate in the proceedings and accordingly stayed the proceedings on that basis?

Answer: The District Judge should not have stayed the proceedings at the outset as he did without considering the alternative of allowing the trial to proceed while keeping Ps situation under constant review

Question: Where it is established that a defendant is unfit to plead, to what extent is it necessary for him to participate in any trial of the facts?

Answer: If the court proceeds with fact-finding only, the fact that the defendant does not or cannot take any part in the proceedings does not render them unfair or in any way improper; the defendants Article 6 rights are not engaged by that process.

The court confirmed that it is only in exceptional cases that the youth court should exercise its power to stay proceedings before hearing any evidence on the substantive issue.

Medical opinion on the youth's capacity and ability to plead and participate in the trial is not conclusive and will not be the sole answer to the question of whether a youth should be tried for a criminal offence.

It is for the court, not the doctors to decide whether a trial should take place, because it is the court's opinion of the youth's level of understanding which must determine whether a trial takes place. The court must be willing, in appropriate cases to disagree with and reject the medical opinion, and to consider the possibility that the medical evidence might appear in a different light if and when the trial progresses. The court should take into account all relevant evidence, including:

• Medical evidence
• Evidence of what the youth is said to have done
• Evidence of the youths behaviour on arrest and in interview
• What the youth said in interview
• Direct exchange in court between the District Judge or Chair and the youth.

If the court decides not to proceed with a criminal trial because the youth cannot take an effective part in the proceedings, it should consider whether to switch to a fact finding exercise to decide whether the child did the act or made the omission. (This procedure was set out in R v Barking Justices see Mentally Disordered Offenders elsewhere in this guidance.) This option may be appropriate where there is a possibility that a court will make a hospital order or guardianship order (for those aged 16 and 17).

Proceedings should be stayed as an abuse of process before the fact finding exercise only if there would be no useful purpose served by making a finding on the facts. The fact that the youth does not or cannot take any part in the proceedings does not render them unfair or in any way improper. The Article 6 ECHR right to a fair trial is not engaged by this process as it is part of the protective jurisdiction contemplated by the Mental Health Act 1983.

If the court finds that the youth did not do the act or make the omission alleged, the proceedings are terminated by way of an acquittal.

If the court finds that the youth did the acts alleged, it should consider whether to seek further medical evidence with a view to making a hospital order under section 37(3) Mental Health Act 1983. The court may also make a guardianship order if the youth is aged 16 or 17.

If a disposal under the Mental Health Act 1983 is inappropriate, it may be appropriate to alert the local authority to the position, with a view to consideration of care proceedings.

Measures to enable youth offenders to participate in their trial

The Practice Direction (Criminal Proceedings: Consolidation), para.III.30 (as inserted by Practice Direction (Criminal Proceedings: Further Directions) [2007] 1 WLR 1790) applies to trial, sentencing and appeal proceedings in the magistrates courts (including youth courts) and the Crown Court of children under the age of 18 AND adults who suffer from a mental disorder within the meaning of the Mental Health Act 1983 or who have any other significant impairment of intelligence and social function. (Archbold 4-96b)

The overriding principle is set out at paragraph III.30.3: A defendant may be young and immature or have a mental disorder within the meaning of the Mental Health Act 1983 or some other significant impairment of intelligence and social function such as to inhibit his understanding of and participation in the proceedings.

The purpose of criminal proceedings is to determine guilt, if that is in issue, and decide on the appropriate sentence if the defendant pleads guilty or is convicted. All possible steps should be taken to assist a vulnerable defendant to understand and participate in those proceedings. The ordinary trial process should, so far as necessary, be adapted to meet those ends. Regard should be had to the welfare of a young defendant as required by section 44 of the Children and Young Persons Act 1933, and generally to paragraphs 1 and 3 of the Criminal Procedure Rules (the overriding objective and the courts powers of case management).

Intermediaries for youth offenders

The court has an inherent power to appoint an intermediary to assist a youth defendant to prepare for the trial in advance of the hearing and during the trial so that he can participate effectively in the trial process. This appointment is not made pursuant to a special measures direction under the Youth Justice and Criminal Evidence Act 1999, but is part of the courts duty to take such steps as are necessary to ensure that a youth has a fair trial, not just during the proceedings, but beforehand as he and his lawyers prepare for trial: C v Sevenoaks Youth Court [2009] EWHC 3088 (Admin).

Live Links for youth offenders

A youth offender may give evidence in criminal proceedings in the magistrates' court and the Crown Court using a live link if:

• His ability to participate effectively in the proceedings as a witness giving oral evidence is compromised by his level of intellectual ability or social functioning; AND
• His ability to participate effectively would be improved by giving evidence over a live link (sec 33A(4) Youth Justice and Criminal Evidence Act 1999 as inserted by section 47 of the Police and Justice Act 2006.); AND
• The court is satisfied that it is in the interests of justice for the youth to give evidence through a live link.

A live link is defined in sec 33B Youth Justice and Criminal Evidence Act 1999 as an arrangement by which the accused, while absent from the place where the proceedings are being held, is able to see and hear a person there, and to be seen and heard by the judge, justices, jury, co accused, legal representatives and interpreters or any other person appointed by the court to assist the accused.

The defence must apply for a live link direction, which prevents the defendant from giving oral evidence in the proceedings in any manner other than through a live link (s33A (6). The court may discharge a live link direction at any time if it appears in the interests of justice to do so of its own motion or on application by any party (s33A (7). The court must give reasons in open court for giving or discharging a live link direction or for refusing an application for or the discharge of a live link direction. Those reasons must be recorded on the register of proceedings where the decision was made in the magistrates' court (s33A (8)).

Venue: Policy Guidance on Venue Representations where youths are charged with offences capable of being tried on indictment.

All youths charged alone shall be tried summarily in the Youth Court, unless:

The offence is homicide

or

section 51A Firearms Act 1968 applies i.e. the youth is aged 16 or 17 and is charged with an offence contrary to section 5(1)(a), (ab), (aba), (ac), (ad), (ae), (af), 5 (1)(c) or section 5(1A)(a) Firearms Act 1968 i.e. possession or distribution of certain prohibited weapons or ammunition or distributing a firearm disguised as another object.

or

the magistrates decline jurisdiction under Section 24 Magistrates Court Act 1980 (Stones 1-2053) because the offence is a grave crime as defined in Section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 and decide that the offender should be sentenced pursuant to the provisions of that section.

or

the youth is charged with a "specified offence" as defined in section 224 Criminal Justice Act 2003 and he has been sent for trial as it appears to the magistrates that if he is convicted, the criteria for imposing a sentence of detention for life (s226) or an extended sentence (s226B) would be met. (s51A (2) and (3) (d) Crime and Disorder Act 1998.)

A youth convicted in the youth court or magistrates' court of a "specified offence" as defined in section 224 Criminal Justice Act 2003 may be committed to Crown Court for sentence if the magistrates decide that the criteria for the imposition of a sentence of detention for life (s226) or an extended sentence (s226B) appear to be met. (s3C PCC(S) A 2000)

See Sentencing Dangerous Offenders elsewhere in the Legal Guidance.

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.

Dangerousness

The Youth specialist should consider the principles set out by Rose LJ in CPS v South East Surrey Youth Court and MG [2005] EWHC 2929 (Admin).

• The policy of the legislature, as correctly identified by Leveson J in R (on the application of H, A and O) v Southampton Youth Court [2004] EWHC 2912 Admin (Refer to Grave Crimes below) and approved by the Divisional Court in R (on the application of the CPS) v Redbridge Youth Court [2005] EWHC 1390 Admin. is that those who are under 18 should, wherever possible, be tried in a youth court, which is best designed for their specific needs.
• The guidance given by the Court of Appeal (Criminal Division) in particular in paragraph 17 of the judgment in Lang and Others, particularly in (iv) in relation to non- serious specified offences 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: 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 dangerousness criteria are met, the defendant can be committed to Crown Court for sentence a procedure with which the Crown Court has, for many years, been familiar.
• When a youth under 18 is jointly charged with an adult, an exercise of judgment will be called for by the Youth Court when assessing the competing presumptions in favour of (a) joint trial of those jointly charged and (b) the trial of youths in the youth Court. Factors relevant to the judgment will include the age and maturity of the youth, the comparative culpability in relation to the offence and the previous convictions of the two and whether the trial can be severed without either injustice or undue inconvenience to witnesses.

There will be few cases in which it will be appropriate to exercise the power to send a youth for trial under section 51A (3) (d) Crime and Disorder Act 1998. It should only be exercised where:

• there is sufficient information, which will usually include a risk assessment in a recent pre-sentence report, about the nature and circumstances of the Offender, the offence and any pattern of behaviour of which the offence forms part for the youth court to allow the court to assess the offender as dangerous; AND
• it is in the interests of justice for the youth to be tried on indictment

Prosecutors should usually recommend summary trial on the basis that the youth court is the appropriate tribunal for youth trials. Summary trial will usually reduce delay and will allow more youth co-defendants to be tried together. Trial on indictment is unnecessary as the youth can be committed for sentence under section 3C 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.

In exceptional cases where there is sufficient information for the court to determine dangerousness and it is in the interests of justice for the youth to be tried on indictment, prosecutors should represent that the youth should be sent for trial under section 51A (3)(d) Crime and Disorder Act 1998. The decision to represent trial on indictment should be taken by a youth specialist and full reasons should be recorded on the file.

Where the youth is sent for trial under section 51A (3) (d), he may, on the same occasion, also be sent for trial for any indictable offence that is related to that offence and for any summary offence (i.e. one that is punishable with imprisonment or carries mandatory or discretionary disqualification from driving) that is related to the grave crime or to the related indictable offence (section 51A (4) Crime and Disorder Act 1998).

Where the youth court appears on a subsequent occasion, he may be sent for trial for any indictable or summary offence (as defined above) that is related to the offence for which he was sent for trial under section 51A (3) (d) Crime and Disorder Act 1998. There is no power to commit summary offences that are related to the subsequent indictable offence (section 51A (5) Crime and Disorder Act 1998) where the youth appears on a subsequent occasion.

If the court decides that the criteria for sending the youth under section 51A (3) (d) Crime and Disorder Act 1998 are not met and the offence is also a grave crime, the prosecution and the defence will be invited to address the court on the appropriate venue for trial. Prosecutors should make representations in accordance with the principles set out below in the Grave Crimes section.

When a youth is to be sentenced for a specified offence and the criteria for imposing an extended sentence (section 226B Criminal Justice Act 2003) or a life sentence (section 226 Criminal Justice Act 2003) appear to be met, the prosecutor should assist the court by drawing to its attention:

• information about the nature and circumstances of the offence
• information about any pattern of behaviour of which the offence forms part, including recent antecedents and the details of those offences
• information about the offender

When the sentencing hearing takes place in the youth court, the prosecutor should remind the court of its power to commit for sentence under section 3C Powers of Criminal Courts (Sentencing) Act 2000.

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.  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.

On the same occasion that a youth is sent for trial for a grave crime, he or she may also be sent for trial for any indictable offence that is related to the grave crime and for any summary offence that is punishable with imprisonment or carries mandatory or discretionary disqualification from driving that is related to the grave crime or to the indictable offence that is related to the grave crime (section 51A (4) Crime and Disorder Act 1998).

Where the youth appears on a subsequent occasion, he may be sent for trial for any indictable or summary offence (punishable with imprisonment or mandatory or discretionary disqualification from driving) that is related to the grave crime. There is no power to send summary offences that are not related to the grave crime (section 51A (5) Crime and Disorder Act 1998).

In all cases, the MG3 should identify any grave crimes and provide instructions on venue that apply the principles in H,A and O v Southampton Youth Court [2004] EWHC 2912 Admin, set out below , relevant Sentencing Guidelines and caselaw to the facts of the case.

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 courts 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, youth conditional cautions, youth cautions, 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.

Prosecutors should make a full file note of the representations made by the prosecution and by the defence, including any Sentencing Guidelines and caselaw referred to. The decision of the court together with reasons should also be endorsed on the file. In rare cases, where the court's decision to accept jurisdiction appears to be so unreasonable, prosecutors should immediately ask the court not to take a plea and seek an adjournment to consider whether to seek judicial review of that decision. The expedited procedure should always be used to avoid delay in youth cases.

Where the court accepts jurisdiction, prosecutors should assist the court at the sentencing hearing by reminding the court of its power under section 3C Powers of Criminal Courts (Sentencing) Act 2000 to commit for sentence where the youth is dangerous and the conditions for a sentence under sections 226 (life) or 226B8 (extended sentence) Criminal Justice Act 2003 appear to be satisfied. The power is available even if the youth is convicted after trial, unlike the power in section 3B Powers of criminal Courts (Sentencing) Act 2000.

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 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.

If the offence that is jointly charged is a grave crime, the court should first conduct the grave crime procedure (see Graves Crime section in this guidance) and should send the youth to the Crown Court if there is real prospect of a custodial sentence of two years or more. The magistrates' court has jurisdiction to determine venue for grave crimes and the youth should not be remitted to the Youth Court for trial under section 29 Magistrates' courts Act 1980 for this purpose.

The youth will be invited to indicate a plea before the court decides whether a joint trial is necessary "in the inter2sts of justice" where the youth is:

• jointly charged with an adult with an indictable offence; or
• charged with an indictable offence that is linked to the offence for which the adult is sent for trial. (section 24A Magistrates' Courts Act 1980).

Where the youth does not indicate a guilty plea, the court shall send the youth for trial if it is "in the interest of justice" to do so. The sending may be on the same or subsequent occasion that the adult is sent (section 51(7) Crime and Disorder Act 1998). The court may also send any related indictable or summary offences but only where the youth is sent for trial on the same occasion as the adult. (section 51(8) Crime and Disorder Act 1980). It will not always be appropriate for related offences to be sent, for example where there are youth co-defendants and a single trial in the youth court is desirable. In considering whether or not a youth offender should be sent 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 asking representations. A joint trial will usually be in the interests of justice as 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 youth to participate effectively in their trial. Other relevant factors may include:

• the respective ages of the adult and youth;
• the respective roles of the youth and adult in the commission of the offence;
• 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.

A youth who has been sent for trial with an adult where the first hearing was on or after the date that Schedule 3 Criminal Justice Act 2003 came into force because it is in the interests of justice to do so, may be remitted back to the youth court for trial if the indictment no longer includes the "main offence", and the youth has not been arraigned. The definition of the "main offence" includes the offence for which the youth and the adult were sent where the conditions for that sending are no longer satisfied. This includes cases in which the adult will not be tried for that offence because he has pleaded guilty or the case against him will not proceed. As the adult will not be tried at all, it cannot be said that a single trial in the Crown Court is still in the interests of justice. Unless the offence is a "grave crime" or the youth appears to be "dangerous", the youth should be remitted to the youth court for trial (Schedule 3, paragraph 13 Crime and Disorder Act 1998, as amended). Where any offence on the indictment is a grave crime the Crown Court should determine venue (see grave crimes in the preceding section). The youth should be tried in the Crown Court only if there is a real prospect of a custodial sentence of two years. If there is no real prospect of such a sentence the youth should be remitted for trial in the youth court.

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)

Youth Court Sentences

The Criminal Justice and Immigration Act 2008 simplifies the range of youth sentences. The principal sentences for offences committed on or after 30th November 2009 are:

• Referral Order
• Youth Rehabilitation Order
• Detention and Training Order

However, the following sentences continue to be available:

• Compensation Order (sec 130-138 Powers of Criminal Courts (Sentencing) Act 2000, see Stones 3-1690)
• Fine (sec 130-138 Powers of Criminal Courts (Sentencing) Act 2000, see Stones 3-1690)
• Reparation Order (sec 73-75 Powers of Criminal Courts (Sentencing) Act 2000, see Stones 3-1632)
• Absolute Discharge ( sec 12-15 Powers of Criminal Courts (Sentencing) act 2000, see Stones 3-1564)
• Conditional Discharge ( sec 12-15 Powers of Criminal Courts (Sentencing) Act 2000, see Stones 3-1564)
• Hospital Order (sec 1 Mental Health Act 1983, see Stones 8-22232)
• Guardianship Order (sec 1 Mental Health Act 1983, see Stones 8-22232)

The Crown Court also retains the following sentencing powers:

• Detention under section 90 Powers of Criminal Courts (Sentencing) Act 2000 "detention during His Majesty's Pleasure" for offences of murder committed when the offender was a youth;
• Detention under section 91 Powers of Criminal Courts (Sentencing) Act 2000 for "grave crimes";  
• Detention under section 226 Criminal Justice Act 2003 "indeterminate detention for public protection" for those convicted before 3rd December 2012;
• Detention under section 228 Criminal Justice Act 2003 "extended sentence" for those convicted before 3rd December 2012;
• Detention under section 226B Criminal Justice Act 2003 (as inserted by section 124 Legal Aid Sentencing and Punishment of Offenders Act 2012) new "extended sentence" for those convicted on or after 3rd December 2012

Referral Order

(sec 16-28 Powers of Criminal Courts (Sentencing) Act 2000 see Stones 3-1568)

A referral order can only be made in the youth court or adult magistrates' court, not the Crown Court: section 16(1) Powers of Criminal Courts (Sentencing) Act 2000.

A referral order requires a youth to enter into a contract with a youth offender panel. The order will last for a period of between 3 and 12 months, which will be determined by the court. It may be revoked or extended by a maximum of 3 months, to a maximum of 12 months on the application of the youth offending team if it is in the interests of justice to do so.

Mandatory Referral Conditions

A referral order is mandatory if:

• The youth has no previous convictions; AND
• The youth pleads guilty to all imprisonable offences with which he is charged; AND
• The court does not consider that a Detention and Training Order, Absolute Discharge or Hospital Order is appropriate.

Where the custody threshold has been reached, the court should adjourn for a Pre-Sentence Report to enable the youth offending team to put forward a robust and credible referral order intensive contract for the consideration of the court.

A referral order intensive contract should include:

• the provision of similar resources to those available for other community sentences in custody threshold cases (up to 25 hrs per week);
• the full range of intensive community intervention options, including non-electronic curfews;
• restrictions should be considered to match the requirements of the case. (Referral Order Guidance 2009: DCSF/YJB)

Discretionary Referral Conditions

A referral order is available at the discretion of the youth court if the mandatory referral conditions are not satisfied AND

• The youth has no previous convictions and pleads guilty to a non imprisonable offence; OR
• pleads guilty to one or more offences and is convicted after trial on others; OR
• The youth has a previous conviction but has never been sentenced to a referral order ;OR
• The youth has a previous conviction and has been sentenced to a referral order but the youth offending team recommends a further referral order and the court finds "exceptional circumstances to justify this course of action".

Sentencing Offences after the Referral Order is made

If a youth is sentenced for an offence that was committed before the referral order was made, the court may extend the order, to a maximum of 12 months (Schedule 1 paragraph 11 Powers of Criminal Courts (Sentencing) Act 2000) or may make an absolute discharge.

If a youth is sentenced for an offence that was committed after the referral order was made, the court may extend the order, to a maximum of 12 months or, if the court is satisfied, on the basis of a report from the youth offending team, that there are "exceptional circumstances" that indicate that the extension of the order is likely to prevent re offending. (Schedule 1 paragraph12 (2) Powers of Criminal Courts (Sentencing) Act 2000).

If the new offence is not dealt with by extending the referral order (or by way of absolute discharge in the case of an offence that pre dates the referral order), the referral order is automatically revoked and the court may resentence for the original offence or take no action. (Schedule 1 Paragraph 14 Powers of Criminal Courts (Sentencing) Act 2000.)

Youth Rehabilitation Order

(see sections 1-4 and Schedules 1 to 4, 27 Criminal Justice and Immigration Act 2008 and Stones 3-2102)

The Youth Rehabilitation Order (YRO) will be available for offences committed on or after 30th November 2009 (section 1 and Schedule 27 Part 1 (1) Criminal Justice and Immigration Act 2008.) The YRO is a community sentence which may include one or more of the following requirements, which must be completed within a period of 3 years:

• an activity requirement (see paragraphs 6 to 8 of Schedule 1),
• a supervision requirement (see paragraph 9 of Schedule 1),
• in a case where the offender is aged 16 or 17 at the time of the conviction, an unpaid work requirement (see paragraph 10 of Schedule 1),
• a programme requirement (see paragraph 11 of Schedule1);
• an attendance centre requirement (see paragraph 12 of Schedule 1),
• a prohibited activity requirement (see paragraph 13 of Schedule 1),
• a curfew requirement (see paragraph 14 of Schedule 1),
• an exclusion requirement (see paragraph 15 of Schedule 1),
• a residence requirement (see paragraph 16 of Schedule 1),
• a local authority residence requirement (see paragraph 17 of Schedule 1),
• a mental health treatment requirement (see paragraph 20 of Schedule 1),
• a drug treatment requirement (see paragraph 22 of Schedule 1),
• a drug testing requirement (see paragraph 23 of Schedule 1),
• an intoxicating substance treatment requirement (see paragraph 24 of Schedule 1), and
• an education requirement (see paragraph 25 of Schedule 1).

YRO with Intensive Supervision and Surveillance/Fostering Requirement

A YRO may also include intensive supervision and surveillance (ISS) or fostering (sec 1(3) Criminal Justice and Immigration Act 2008) , but not both (Schedule 1 Part 1 Paragraph 5 ) if:

• the court is dealing with the offender for an offence which is punishable with imprisonment; AND ,
• the court is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that, but a custodial sentence would be appropriate ; AND
• if the offender was aged under 15 at the time of conviction, the court is of the opinion that the offender is a persistent offender. (section 1(4) Criminal Justice and Immigration Act 2008)

Persistent Offender

"Persistent offender" is not defined in the Criminal Justice and Immigration Act 2008, but paragraph 6.5 Sentencing Guidelines Council Definitive Guideline states that:

"In determining whether an offender is a persistent offender for these purposes, a court should consider the simple test of whether the young person is one who persists in offending:

iii) in most circumstances, the normal expectation is that the offender will have had some contact with authority in which the offending conduct was challenged before being classified as persistent; a finding of persistence in offending may also arise from orders which require an admission or finding of guilt these include reprimands, final warnings, restorative justice disposals and conditional cautions. Since they do not require such an admission, penalty notices for disorder are unlikely to be sufficiently reliable;

iv) a young offender is certainly likely to be found to be persistent (and, in relation to a custodial sentence, the test of being a measure of last resort is most likely to be satisfied) where the offender has been convicted of, or made subject to a pre court disposal that involves an admission or finding of guilt in relation to, imprisonable offences on at least three occasions in the past 12 months."

NB: A court is not obliged to impose a Detention and Training Order or a Youth Rehabilitation Order with Intensive Supervision and Surveillance or Fostering that becomes available solely on the finding that the youth is a "persistent offender".

YRO with ISS

(See Schedule 1 Part 1 Paragraph 3 Criminal Justice and Immigration Act 2008)

In addition to the conditions in section 1(4) (a) to (c) Criminal Justice and Immigration Act 2008 (above), the following applies:

If the YRO includes an activity requirement, may specify in relation to that requirement a number of days between 90 and 80, which will be known as an "extended activity requirement".

If an "extended activity requirement" is made, then the YRO must also include:

• a supervision requirement, and
• a curfew requirement.

YRO with Fostering

(See Schedule 1 Part 1 Paragraph 4 Criminal Justice and Immigration Act 2008)

The court may only make a YRO with Fostering Requirement if, in addition to the to the conditions in section 1(4) (a) to (c) Criminal Justice and Immigration Act 2008 (above), the following conditions are also satisfied:

• the behaviour which constituted the offence was due to a significant extent to the circumstances in which the offender was living, AND
• a fostering requirement would assist in the offenders rehabilitation.

Before making a fostering requirement, the court must consult the offenders parents or guardians unless it is impracticable to do so and, the local authority which is to place the offender with a local authority foster parent.

A YRO with a fostering requirement must also impose a supervision requirement.

Approach to Determining Requirements

A PSR will be required before the court makes a YRO, which will seek to balance the seriousness of the offence, the risk of the youth causing serious harm in future and the needs of the young person. The PSR will identify a level of intervention for the court to consider. There are 3 intervention levels:

Standard Level: for youths assessed as posing a low risk of reoffending and a low risk of serious harm. The YRO will primarily seek to repair the harm caused by the offence.

Enhanced Level: for youths assessed as posing a medium likelihood of reoffending or a medium risk of serious harm. The YRO will seek to repair harm done and seek to enable the youth to obtain help and motivate the youth to change his or her behaviour.

Intensive level: for youths assessed as posing a high likelihood of reoffending or a high or very high risk of serious harm. The YRO will seek to ensure control of the youth as necessary to minimise the risk of further offending or serious harm. (SGC Guideline paragraph 10).

Sentencing Offences after the YRO is made

Para 18 Schedule 2 Part 5 Criminal Justice and Immigration Act 2008 states that where a YRO is in force and the youth is convicted of a further offence, the convicting court (i.e. the court that convicts of the further offence) may revoke the order.

If a youth is convicted of a new offence while subject to a YRO, that YRO must be revoked if the court wishes to make:

• a YRO in respect of the new offence. (Para 30 (4))Schedule 1 Part 3 of Criminal Justice and Immigration Act 2008;

OR

• a reparation order in respect of the new offence (Section 73(4A) Powers of Criminal Courts (Sentencing) Act 2000 as introduced by Para 53 of Schedule 4 Criminal Justice and Immigration Act 2008.)

NB. The court cannot make a YRO when a reparation order is in force, unless it revokes the reparation order (para 30(4) Schedule 1 Part 3 of Criminal Justice and Immigration Act 2008.)

If the YRO is not revoked by the convicting court, it appears that there is an implicit power to impose a discharge, compensation order, fine or Detention and Training Order (DTO) in respect of the new offence.

If the YRO is revoked by the convicting court, it may deal with the offender in any way that it could had the defendant been convicted in that court of the original offence. (Para 18(4) Part 5 Schedule 2 Criminal Justice and Immigration Act 2008).

Detention and Training Order

(Section 100-106 Powers of Criminal Courts (Sentencing) Act 2000: See Stones 3-1660)

A Detention and Training Order (DTO) may be made in respect of a youth aged 15 or over at the date of conviction, or in respect of a youth aged 12 to 14 at the date of conviction if he or she is a "persistent offender". See persistent offender above in this guidance.

A DTO can only be made if the court is satisfied that the offence, or the combination of the offence and one of more offences associated with it, is so serious that neither a fine alone nor a community sentence can be justified for the offence (sec 152 Criminal Justice Act 2003 and section 100 Powers of Criminal Courts (Sentencing) Act 2000.)

When a court makes a DTO it must state its reasons for being satisfied that the offence is so serious that no other sentence is appropriate and, in particular why a YRO with ISS or fostering (see above) cannot be justified (section 174(4B) as inserted by Schedule 4 Para 80 (3) Criminal Justice and Immigration Act 2008.

The term of a DTO must be of 4, 6, 8, 10, 12, 18 or 24 months, provided that the term does not exceed the maximum term of imprisonment that a Crown Court could impose for the offence. Consecutive DTOs may be made, even for summary only offences, provided that the aggregate does not exceed 24 months: (C v DPP 2001 165 JP 414 and R v Medway Youth Court ex parte A (2000) 1 Cr. App. R. (S) 191)

The adult rules for deducting time spent on remand do not apply to calculating the length of a DTO, so the court should take this into account when determining the length of the DTO: R v Ganley [2001] 1 Cr. App. R. (S) 60.

The period spent on remand means a remand in a remand centre, secure accommodation and possibly a police station although any period spent in a police station is likely to be de minimis and will probably be discounted. A bare remand to local authority accommodation, which is not approved secure, does not qualify as a period spent on remand. (R v Secretary of State for Home Department ex parte A (HL) Times Law Report 27.1.2000).

Sentencing for Offences after the DTO is made: (sec 105 Powers of Criminal Courts Sentencing Act 2000 3-1665 Stones)

If a youth commits an imprisonable offence after his release from the "detention" element of the DTO but before the order expires, the court can order him to be detained for a period that does not exceed the period from the date the imprisonable offence was committed to the date that the DTO expires.

This period can be served either before or concurrent to any sentence passed for the imprisonable offence.

NB There is no requirement that the youth is convicted of the imprisonable offence before the DTO expires.

Interaction of DTO with sentences of detention - section 106A Powers of Criminal Courts (Sentencing) Act 2000

If a youth is sentenced to a sentence of detention under section 91 Powers of Criminal Courts (Sentencing) Act 2000 (for grave crimes) or under section 228 Criminal Justice Act 2003 (extended sentences for specified offences) while he is already subject to a DTO, the sentence of detention for the new offence takes effect from the date of release from the "detention and training" element of the order served in detention,

If a youth is sentenced to a DTO while he is already subject to a sentence of detention under, the DTO takes effect on the day of his release on licence, or, immediately if he is already on licence.

Determining Age

Where anyone is brought before any court and it appears that they are a child or young person, the court shall make due enquiry as to their age, and the age presumed or declared by the court is deemed to be their true age: section 99 Children and Young Persons Act 1933 and section 150 Magistrates' Courts Act 1980. 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.

Prosecutors should assist the court by:

• adducing relevant documents that indicate a date of birth such as a list of antecedents, PNC printout, custody record, copies of passports, identity cards;
• inviting the court to hear oral evidence from the defendant and any accompanying adult(s) as to the age of the defendant and cross examining where such evidence is inconclusive or inconsistent with other evidence, including the defendant's appearance and demeanour.

Where the defendant appears to have entered the UK without satisfactory evidence of identity and age, additional evidence should be available from the Home Office or the local authority. R on the application of R v London Borough of Merton [2003] EWHC 1689 (Admin) gives guidance to local authorities on the conduct of an assessment of age of a person claiming to be under 18, which includes guidance on assessing appearance and demeanour, credibility, social history and family composition, education, developmental considerations, ethnic and cultural background. See also the Immigration Law Practitoners Association Publications: When is a child not a child? Asylum, age disputes and the process of age assessment, and chapter 3 of Working with Refugee Children: Current Issues in Best Practice.

Jurisdiction of the Youth Court when defendant attains 18

The youth court has no jurisdiction where the defendant has attained the age of 18 before making his or her first appearance in court: R v Uxbridge Youth Court ex parte H TLR 7/4/98, R v Amersham Juvenile Court ex parte Wilson 1981 2 All ER 315. 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 the defendant attains the age of 18 after making a 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) or after trial and before sentence (section 9 Powers of Criminal Courts (Sentencing) Act 2000.)

Case law indicates that the key factor in determining whether the court should retain or remit the case is whether jurisdiction has been accepted before the defendant attains the age of 18.

Where the court has accepted jurisdiction for a grave crime before the defendant attains 18, the court may proceed to trial and sentence, including a Detention and Training Order, even though the defendant is 18 at the time of trial or sentence: R v Aldis v DPP [2002] EWHC Admin 403.

Where the defendant attains 18 before consideration of venue, the court should treat the defendant as an adult and remit him to the adult magistrates court under section 47 Crime and Disorder Act 1998 so that he can be sent to Crown Court for trial for indictable only matters: R v Nottingham Justices ex parte Taylor (1991) 4 All ER 860 or exercise the right to elect Crown Court trial for either way matters.

The defendant cannot elect trial on indictment if he attains 18 after entering a plea to an indictable only (R v St. Albans 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.

Sentencing: Crossing a relevant age threshold

A defendant who is 18 at the date of conviction should be sentenced in accordance with the purposes of sentencing set out in section 142 Criminal Justice Act 2003, including the reduction of crime by deterrence.

The relevant date for determining eligibility for sentences is generally the date of the finding of guilt: R v Danga (1991) 13 Cr. App. R. (S) 408. However, where a defendant crosses a relevant age threshold between the date of the offence and the date of conviction, the starting point is the likely sentence that would have been passed had the youth been sentenced on the day that the offence was committed. (R v Ghafoor [2002] EWCA Crim 1857). This may result in a maximum sentence for an offence that is not a "grave crime" of 2 years custody (equivalent to the maximum period of 24 months for a Detention and Training Order): R v Ghafoor, or a non custodial sentence if the youth is ineligible for a Detention and Training Order: R v LM [2002] EWCA Crim 3047. The starting point may be departed from where there is good reason to do so: R v Bowker [2007] EWCA Crim 1608.