Youth courts and the appearance of youths in other courts.docx

***[Youth courts and the appearance of youths in other courts -- 4 Q's ]*** ***[Adult]***. In the context of criminal procedure and mode of trial, **an 'adult' is any person aged 18 or over.** In the **context of sentencing, however, 'adult' is sometimes used to mean those aged 21 or over, since it...

***[Youth courts and the appearance of youths in other courts -- 4 Q's ]*** ***[Adult]***. In the context of criminal procedure and mode of trial, **an 'adult' is any person aged 18 or over.** In the **context of sentencing, however, 'adult' is sometimes used to mean those aged 21 or over, since it is at that age that an offender currently becomes liable to imprisonment.** ***[Child]***. By the CYPA 1933, s. 107(1), '**child' (when used in that Act) means a person under the age of 14 years.** The CYPA 1969, s. 70(1), contains a similar provision in respect of most of the provisions of that Act, while the CYPA 1963, s. 65(3), provides that the 1963 Act shall be construed 'as one with' the 1933 Act. ***[Young person]***. The definition sections referred to in (c) above also define '**young person' as a 'person who has attained the age of 14 years and is under the age of 18 years'**. Thus, a distinction has to be drawn between children (aged under 14) and young persons (aged 14 to 17 inclusive). ***[What is the age of criminal responsibility? ]*** - There is an irrebuttable presumption that a person who is under the age of ten cannot be guilty of a criminal offence. - The House of Lords ruled that, by enacting s. 34, Parliament intended to abolish both the presumption and the defence of doli incapax. The trial judge's ruling, that D (aged 12) was precluded by s. 34 from raising the issue of doli incapax, was therefore upheld. ***[How to determine age? ]*** - Where a person apparently under 18 is brought before a court, **the court is to make 'due inquiry' as to the person's age and must take into account such evidence on the matter** as may be forthcoming at the hearing of the case. - **Any order or judgment of the court is not invalidated by subsequent proof that the person's age was incorrectly stated; the person is deemed for the purposes of the 1933 Act to be whatever age he or she is presumed or declared to be by the court.** - The **court is entitled to accept what the person (or the person's parent or guardian, if present) says on the matter,** although in cases of doubt it **may ask for further inquiries to be undertaken.** - Makes similar provision in respect of age-dependent powers granted to magistrates by that Act. **For the purposes of sentencing, a person's age 'shall be deemed to be that which it appears to the court ... after considering any available evidence'** ***[Trial in the Youth Court -- ]*** The public are excluded from the courtroom of a youth court. The only persons permitted to be present in the youth court are: a. **members of the court and court officials** b. **parties to the case before the court and their legal representatives** (lawyers cannot enter the courtroom if a case they are appearing in is not being dealt with at that time) c. **witnesses and other persons directly concerned in that case (witnesses are allowed to remain in court once they have given evidence)** d. **bona fide representatives of news gathering or reporting organisations** (but note the reporting restrictions set out below) e. **anyone else directly involved in the case** (e.g., probation officers or social workers involved in the case); and f. **such other persons as the court may specially authorise to be present**. The **position in the youth court should be contrasted with those cases where a child or young person is appearing as an accused, or as a witness, in an adult magistrates' court or the Crown Court---in those courts**, the **public has the right to be present unless the court takes the exceptional step of sitting in private.** ***[What about attendance of parent or guardian? ]*** - **Where the accused is a child or young person, the court may in any case, and must in a case where the accused is under the age of 16**, **order the attendance of a parent or guardian unless and to the extent that the court is satisfied that it would be unreasonable to do so**, having regard to the circumstances of the case. - **'Guardian' is defined as any person who, in the opinion of the court, has for the time being 'the care of the child or young person**' (s. 107). '**Parent'** is not defined in the 1933 Act but, by the Adoption Act 1976, s. 39, **includes the adopter of an adopted child**. In cases **where the local authority has parental responsibility, their representative, rather than, or in certain cases as well as, the parent must (or may) be required to attend**. ***[What is the course of a youth court trial? ]*** - The course of a trial in the youth court is essentially the same as the course of a trial in an adult magistrates' court. - As a matter of terminology, **the words 'conviction' and 'sentence' are not to be used in connection with children and young people who are tried summarily** (CYPA 1933, s. 59). They are replaced by, respectively, the **terms 'finding of guilt' and 'order made on a finding of guilt'** (CrimPR 24.1(2)). This **applies both to proceedings in the youth court and to proceedings against children and young people in the adult magistrates' court.** It **[does not, however, apply to proceedings on indictment]**. - The procedure in the **youth court is intended to be less formal than in the adult magistrates' court.** So, for example, **the accused sits on a chair, not in a dock**, and usually **has a parent or guardian sitting nearby; the accused and any young witnesses are addressed by their first names; the oath taken by witnesses is to 'promise'** (not 'swear') **to tell the truth.** ***[What about trial on indictment? ]*** Unless a child or young person is sent to the Crown Court for trial, he or she must be tried summarily. Where **a person under the age of 18 years appears or is brought before a magistrates' court on an information charging him with an indictable offence he shall**, subject to sections 51 and 51A of the Crime and Disorder Act 1998 and to sections 24A and 24B below, **be tried summarily.** - Section 51(7) **deals with cases where there is an adult co-accused**. Section 51A deals **with those cases in which either a child or young person must be tried on indictment or else the magistrates have a discretion to send him or her to the Crown Court for trial.** S51A (2) (3) -- The **court to send the child or young person forthwith to the Crown Court for trial** where charged with: a. **homicide**; or b. **a firearms offence where there is a mandatory minimum sentence** (FA 1968, s. 51A), or an offence under the VCRA 2006, s. 29(3) (**minimum sentences in certain cases of using someone to mind a weapon**) c. an offence to which the provisions of the SA 2020, s. 249, **apply and the court considers that it ought to be possible to sentence the accused to detention under that section in the event of being convicted of the offence**; or d. the **offence is a 'specified' offence (under the SA 2020, s. 306) and it appears to the court that, if the accused is found guilty of the offence, the criteria for the imposition of a sentence under the SA 2020, s. 254 (extended sentence for certain violent or sexual offences) would be met**. The functions of the court under the FA 1968, s. **51A, can be exercised by a single justice.** ***[What is the mode of the trial? ]*** **Normal rules governing allocation (sometimes known as 'mode of trial') do not apply where the accused is under the age of 18**. Most children and young people are tried and sentenced in youth courts. By virtue of the CYPA 1933, s. 45, **youth courts are magistrates' courts**. It follows that **trial in the youth court is merely a form of summary trial** (**even though there are special rules governing the procedure to be followed by youth courts**). However, the **youth court has jurisdiction to try offences which, in the case of an adult, are triable only on indictment (with the exception of homicide and certain firearms offences).** Whereas **an adult may never be tried summarily for an offence triable only on indictment and always has the right to elect trial on indictment for an offence triable either way**, an accused under the age of 18 may (and usually will) be tried summarily for an indictable offence, whatever the accused's wishes as to mode of trial may be. In other words, **an accused under the age of 18 has no right to elect a Crown Court trial.** **If a child or young person is sent to the Crown Court for trial, it is because the magistrates have decided that they should not accept jurisdiction** --- the **most the accused may do is to make representations for or against staying in the youth court.** a **child or young person either must be tried in the Crown Court if charged**: i. **with homicide**, or ii. with **certain offences to which mandatory minimum sentence provisions** (e.g., the FA 1968, s. 51A) apply, if applicable in the instant case; \(b) **a child or young person may be tried in the Crown Court** if charged: i. with an offence to which the SA 2020, s. 249, applies (**offences carrying at least 14 years' imprisonment in the case of an adult, together with those specified in s. 249 itself),** or ii. with an offence which falls **within the ambit of the 'dangerous offender' provisions** of the SA 2020 (see E16), or iii. **alongside an adult accused** \(c) a **child or young person may be tried in an adult magistrates' court if charged alongside an adult accused.** ***[Plea before venue procedure for young adults or children -- ]*** - Apply a procedure similar to that contained in ss. 17A to 17C of that Act (the 'plea before venue' hearing) to cases involving an accused who is under the age of 18. The **plea before venue procedure set out in s. 24A applies where the court would otherwise be required to send a child or young person to the Crown Court for trial by virtue of the CDA 1998, s. 51(7) or (8) (cases where there is an adult co-accused), or s. 51A(3)(b), (4), or (5) (cases falling within the ambit of the SA 2020, s. 249**, see D24.27 et seq.). It follows that, except in the cases which fall within the CDA 1998, s. 51A(12) \[homicide or cases where the requirements of the FA 1968, s. 51A(1), or the VCRA 2006, s. 29(3), would apply if the child or young person were convicted of the offence\]. **A plea before venue hearing must take place where there is a possibility of the child or young person being tried in the Crown Court because he or she is charged alongside an adult or where the offence is one to which the SA 2020, s. 249, applies.** In those cases, **the child or young person is invited to indicate an intention to plead guilty or not guilty** (MCA 1980, s. 24A(6)). **If the accused indicates that an intention to enter a guilty plea, a guilty plea is deemed to have been entered at that point** (s. 24A(7)). The **magistrates then proceed to the sentencing stage; if the offence is one to which the SA 2020, s. 249, applies, the magistrates may commit the offender to the Crown Court for sentence under the SA 2020, s. 16** (see D24.58), **if they take the view that their sentencing powers are insufficient**. If the **accused indicates a not guilty plea (or gives no indication as to intended plea), the magistrates proceed to determine allocation** (MCA 1980, s. 24A(8) and (9)). Thus**, if the case is one to which the SA 2020, s. 249, applies**, the **magistrates go on to consider whether it ought to be possible to impose a sentence of detention under that section if the accused is found guilty of it;** if the **case is one where the child or young person is charged alongside an adult who is to be tried in the Crown Court, the magistrates go on to consider whether it is necessary in the interests of justice for the child or young person to be sent to the Crown Court** for trial as well. enables the **plea before venue procedure to be determined in the absence of a child or young person who is legally represented, and the court considers that, because of the accused's disorderly conduct before the court, it is not practicable for proceedings to be conducted in his or her presence, and the court considers that it should proceed in the absence of the accused.** In such cases, **the legal representative is invited to enter a plea on behalf of the accused (and an indication by the representative of an intended guilty plea is deemed to be a plea of guilty** **Proceedings under s. 24A or 24B can be adjourned.** Where the accused is present, **the adjournment may take the form of a remand, either in custody or on bail** (s. 24C). The functions of the magistrates' court under ss. 24A to 24C **may be exercised by a single justice** ***[What is the court of first appearance? ]*** The **first court appearance by a child or young person in respect of an alleged offence will be in the youth court unless** the case is an exceptional one where the **first appearance is in the adult magistrates' court.** Those exceptional cases are where: a. the **child or young person is jointly charged with an adult**; or b. the **child or young person is charged with aiding and abetting an adult to commit an offence** (or vice versa); or c. the **child or young person is charged with an offence which arises out of circumstances which are the same as (or connected with) those which resulted in the charge faced by an adult accused**. It will usually be appropriate for the child or young person to be produced in person at court (rather than appearing via a live link where that would otherwise be permissible), to ensure proper engagement. ***[How to determine place of trial of children and young people? ]*** **Most trials involving accused under the age of 18 take place in the youth court**. However, there **are cases where a child or young person may, or must, be tried in an adult court (either an adult magistrates' court or the Crown Court).** In summary, there are five circumstances in which the trial of a child or young person either may or must take place in the Crown Court: a. where the **child or young person is accused of homicide** (i.e. murder or manslaughter) **the case must be heard in the Crown Court;** or b. **where the child or young person is charged with a firearms offence where the FA 1968, s. 51A, applies** (or using someone to mind a weapon under the VCRA 2006, s. 29(3)), and **had attained the age of 16 at the date of the alleged offence, the case must be heard in the Crown Court; or** c. where **the child or young person is accused of an offence to which the SA 2020, s. 249, applies (i.e. an offence carrying at least 14 years' imprisonment in the case of an adult or one specified in s. 249 itself),** the **case may, depending on whether or not a sentence in excess of two years is likely to be appropriate, be heard in the Crown Court; or** d. where **the child or young person is charged with a 'specified' offence as defined by the SA 2020, s. 306 (and so falls within the ambit of the 'dangerous offender' provisions of that Act), the case may be heard in the Crown Court**, **depending on whether the accused can properly be regarded as a dangerous offender**; or e. where **the child or young person is charged alongside an adult who is to be tried in the Crown Court, the child or young person may also be sent to the Crown Court for trial, but only if it is necessary in the interests of justice to do so**. There is **only one situation where the trial of a child or young person may take place in an adult magistrates' court, namely where the child or young person is charged alongside an adult who is being tried in the magistrates' court.** ***[What cases fall under s249 -- ]*** The CDA 1998, **s. 51A, must be read in conjunction with the SA 2020, s. 250** (see D24.37), which **provides for the punishment of children and young people who are convicted on indictment of certain serious offences** **Section 250 empowers the Crown Court to order that a child or young person be detained for a period not exceeding the maximum sentence of imprisonment which may be imposed on an adult offender for the offence in question**. It applies only in the following cases, set out in s. 249: a. **where a child or young person who has attained the age of ten is convicted of an offence which carries at least 14 years' imprisonment in the case of an adult offender** b. **where a child or young person who has attained the age of ten is convicted of an offence under the SOA 2003, ss. 3, 13, 25 or 26.** This **provision is necessary because of the relatively limited ambit of the normal custodial sentence for young offenders, namely the detention and training order: this order is limited to a total of 24 months (12 months' custody, followed by 12 months' supervision)**; where **the offender is under the age of 15, a detention and training order can be imposed only if the child or young person is a 'persistent offender'**; moreover, a detention and training order is **not available where the offender is under the age of 12.** Section 250 achieves two key objectives: a. it **enables the Crown Court to pass a longer term of detention than would otherwise be possible** (given the 24-month limit on the duration of the detention and training order); and b. **it enables the Crown Court to impose a term of detention where otherwise no detention would be possible (in the case of an offender under the age of 12, or an offender under the age of 15 who is not a persistent offender**). ***[Scope of s250? ]*** Power to impose a sentence under the SA 2020, s. 250, applies a. where a **child or young person is convicted of an offence to which s. 250 applies** (see s. 249) and is **then committed to the Crown Court for sentence under s. 16** (see D24.58), and b. **where a child or young person is sent to the Crown Court for trial, under the CDA 1998, s. 51A(2) and (3)(b), in respect of an offence to which the SA 2020, s. 249**, applies, and is then convicted of that offence. if **the child or young person, at the 'plea before venue' hearing, indicates a not guilty plea to such an offence, the magistrates must consider whether, if the child or young person is found guilty of the offence, it 'ought to be possible' to impose a sentence under s. 250; if so, the accused must be sent to the Crown Court for trial.** Where a **child or young person is charged with more than one offence, and what is now the SA 2020, s. 249, applies to one or some, but not all, of those offences, the court may**, when considering the seriousness of the offence(s) to which s. 249 applies, consider the **seriousness of the combination of all offences, since they are 'associated offences' within the meaning of s. 400. However, in the event of conviction, the Crown Court may order long-term detention only in respect of those offences to which s. 249 applies.** Where **a child or young person appears before a youth court charged with a number of offences and is sent to the Crown Court in respect of some (but not all) of them, the youth court is not required to adjourn proceedings in respect of the other offences**. ***[Allocation where s249 applies -- ]*** - In a case to which s. 249 applies, before deciding whether to send the case to the Crown Court or retain jurisdiction in the youth court**, the court should hear submissions from the prosecution and defence** However, **evidence about the gravity of the offence (as opposed to representations) is not appropriate at this stage** When a youth court is deciding whether to send a child or young person to be tried in the Crown Court in a case where s. 249 applies, **the court is entitled to know about any previous findings of guilt** It must be emphasised that the child or young person has no right to elect Crown Court trial. Where the trial takes place is a matter for the magistrates, who will take account of the representations made by the prosecution and defence in coming to their decision. Where **several accused are charged together and all are under 18, the court must consider the position of each one separately 'even if this results in one defendant being tried in the youth court and others in the Crown Court'.** It follows that (in contrast to cases involving adult accused, where CrimPR 9.2(6) and (7) apply; see Supplement, R9.2) **one child or young person cannot be sent to the Crown Court for trial merely because another co-accused under the age of 18 is being sent there.** ***[What about dangerous offenders? ]*** where the offence is a '**specified offence' (within the meaning of the SA 2020, s. 306) and it appears to the court that, if the child or young person is found guilty of the offence, the criteria for the imposition of an extended sentence under s. 254 of that Act would be met**, the court must send the accused **forthwith to the Crown Court for trial** for that offence. Section 254 applies **where the court takes the view 'that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences'.** If the **appropriate custodial term for the present offence is at least four years, the court may impose an extended sentence, so that the offender is under licence, following release from custody, for an extended period, for the purpose of protecting members of the public from serious harm occasioned by the commission by the offender of further specified offences.** There **will be few cases in which it will be appropriate to send a child or young person to the Crown Court for trial under the 'dangerous offender' provisions**, and that such power should be exercised only where a. 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, to enable the court to assess the offender as dangerous, and b. it is in the **interests of justice for the accused to be tried on indictment**. The **guidance goes on to say that 'prosecutors should usually recommend summary trial on the basis that the youth court is the appropriate tribunal for youth trials'**, and that **trial on indictment is unnecessary as the youth can be committed for sentence under the SA 2020, s. 17** if (having heard all the facts about the offence and the offender) **the court decides that a sentence under the dangerous offender provisions may be necessary.** On this basis, sending a child or young to the Crown Court for trial is described as an 'exceptional' course of action. ***[What about the mode of trial when a youth is charged with an adult? ]*** where an adult is sent for trial **under s. 51 and a person under 18 appears before the court (whether on the same or a subsequent occasion) charged jointly with an adult who has been sent for trial for the same or a related offence. It provides that the court shall, 'if it considers it necessary in the interests of justice to do so', send the child or young person forthwith to the Crown Court for trial for the indictable offence.** The child or young person may also be sent for trial for any related offences (**though if a related offence is a summary offence this provision will apply only if it is punishable with imprisonment or involves obligatory or discretionary disqualification from driving**). Where--- a. the court **sends an adult ('A') for trial under subsection** (1), (3) or (5) above; and b. a **child or young person appears or is brought before the court on the same or a subsequent occasion charged jointly with A with an indictable offence** for which A is sent for trial under subsection (1), (3) or (5) above, or **an indictable offence which appears to the court to be related to that offence,** the court shall, **if it considers it necessary in the interests of justice to do so, send the child or young person forthwith to the Crown Court for trial for the indictable offence**. Where the court sends a child or young person for trial under subsection (7) above, it may at **the same time send him to the Crown Court for trial for any indictable or summary offence with which he is charged and which---** a. **(if it is an indictable offence) appears to the court to be related to the offence** for which he is sent for trial; and b. **(if it is a summary offence) appears to the court to be related to the offence for which he is sent for trial or to the indictable offence, and which fulfils the requisite condition.** \(9) Subsections (7) and (8) above are subject to sections 24A and 24B of the Magistrates' Courts Act 1980 (which provide for certain cases involving children and young persons to be tried summarily). Assuming that the child or young person indicates an intention to plead not guilty, the court **will invite representations from the prosecution and defence on the issue of whether or not it is 'necessary in the interests of justice' to send the child or young person to the Crown Court for trial.** **The justices must balance what may well be conflicting interests. On one hand, it is desirable that there should be a joint trial (to avoid prosecution witnesses having to give their evidence twice, to avoid the risk of inconsistent verdicts, and to avoid the risk of disparity in the sentences which are passed in the event of conviction). On the other hand, a child or young person may well find appearing in the Crown Court an unduly traumatic experience.** When an accused under the age of 18 is jointly charged with an adult, an exercise of judgement is called for by the youth court when assessing the competing presumptions in favour of i. joint trial of those jointly charged, and ii. the trial of young defendants in the youth court. Factors relevant to that judgement will include the age and maturity of the young defendant, 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 It is submitted that the younger the child or young person and the less serious the charge, the more reluctant the justices should be to send the accused to the Crown Court. Moreover, if it is alleged by the prosecution that the child or young person played only a minor role in the offence, it is likely to be more appropriate to deal with him or her separately. When **the interests of justice test must be considered because the adult is sent for trial to the Crown Court, the court should conclude that the child or young person must be tried separately in the youth court unless it is in the interests of justice for there to be a joint trial** i. **Whether separate trials will cause injustice to witness or to the case as a whole** (bearing in mind the possibility of video recorded testimony under the YJCEA 1999, ss. 27 and 28); ii. **the age of the child or young person (the younger the child or young person, the greater the desirability of trial in the youth court);** iii. the **age gap between the child or young person and the adult** (a substantial gap in age militates in favour of the child or young person being tried in the youth court) iv. the **lack of maturity of the child or young person;** v. the **relative culpability of the child or young person compared with the adult** and whether the alleged role played by the child or young person was minor; vi. the **lack of previous convictions recorded against the child or young person**. The **court should bear in mind that the youth court now has a general power to commit for sentence following conviction pursuant to the SA 2020, s. 16** (so long as the offence is one to which s. 249 of the 2020 Act applies). - In **appropriate cases, this will permit the same court to sentence adult and young offenders who have been tried separately**. ***[Can you remit to youth court? ]*** - Where **an adult and a child or young person are charged together and the adult is to be tried in the Crown Court, and the magistrates decide that it is necessary in the interests of justice for the child or young person to be tried in the Crown Court as well, the Crown Court has no power to remit the child or young person back to the youth court for trial** (even if, for example, the adult pleads guilty in the Crown Court and so the child or young person will be tried alone in the Crown Court). From 28 April 2022. This provides that **where an accused who is under the age of 18 has been sent to the Crown Court for trial, the Crown Court must consider whether to send D back to a magistrates' court and, if it decides not to send D back, must give reasons for not doing so. This does not apply where the offence has to be tried on indictment because of the CDA 1998, s. 51A(12).** ***[Procedure where Child or Young Person is Not Sent with Adult to the Crown Court for Trial -- ]*** **If the child or young person indicates a plea of guilty, and is thereby deemed to have pleaded guilty, the magistrates will consider whether their sentencing powers are adequate.** Those powers are to make any one or more of the following orders (SA 2020, s. 25(5)(b)): a. absolute discharge b. conditional discharge c. a fine (up to £1,000 for an offender who has attained the age of 14; up to £250 for one who has not: s. 123) d. requiring the offender's parents to enter into a recognizance to exercise proper control over the offender (s. 376). An adult magistrates' court is also able to make a referral order under s. 84. If these powers are not appropriate, **the justices will remit the child or young person to the youth court to be sentenced** (s. 25(4)). If the case is one where, **in the youth court, a referral order would be mandatory under s. 84, the adult magistrates' court may, but is not obliged to, remit the case to the youth court** If, **on the other hand, the child or young person pleads not guilty, the adult magistrates' court may either try the accused or remit him or her for trial to the youth court** (MCA 1980, s. 29(2)). In the **absence of a good reason to the contrary (e.g., the prosecution wishing to offer no evidence), it is submitted that the child or young person should normally be remitted to the youth court for trial.** *[What about where the adult co-accused is tried summarily? ]* If the child or young person **indicates a plea of not guilty** at the plea before venue hearing, the **adult court must try him or her** (CYPA 1933, s. 46(1)(a)). If the **child or young person indicates a guilty plea at the plea before venue hearing, or is subsequently found guilty, the magistrates will remit him or her to the youth court** for sentence if the sentences which the adult court can impose (see D24.50) are inappropriate. If, on the other hand, **the adult pleads guilty and the child or young person pleads not guilty, the adult magistrates' court may try the child or young person under the MCA 1980, s. 29(2), or else remit him or her to the youth court for trial.** Although the magistrates could theoretically try the child or young person (even though the adult has pleaded guilty, so that there will be no trial of the adult), **it is much more likely that they will remit the child or young person to the youth court for trial**. There **is little justification for trying a child or young person alone in the adult magistrates' court.** If the child or young person pleads guilty (or the adult court does try the child or young person and he or she is found guilty), **the adult court will remit the child or young person to the youth court if none of the sentences which the adult court can impose are appropriate.** Where the **child or young person is charged with aiding and abetting the adult** or the adult is charged with aiding and abetting the child or young person, **the adult magistrates' court has a discretion to try them both if they both plead not guilty** Similarly, **if the adult and child or young person are charged with offences which arise out of the same circumstances and both plead not guilty,** the adult magistrates' court may either try the child or young person or remit him or her to the youth court for trial. If the **adult pleads guilty and the child or young person pleads not guilty, the magistrates are likely to remit the child or young person to the youth court for trial**; if **the adult magistrates' court tries and convicts the child or young person, he or she will be remitted to the youth court for sentence if the magistrates' sentencing powers are inappropriate**. ***[The Sentencing Act 2020, s. 249, Applies and there is an Adult Co-accused -- ]*** **If the adult is sent to the Crown Court for trial, the question of whether a sentence under s. 249 would be appropriate in the event of the child or young person being convicted of the offence will be highly relevant to the decision whether to send the child or young person to the Crown Court for trial**. As both defendants will be appearing in the adult magistrates' court, it will be that court which takes the decision on where the child or young person is to be tried. **The adult court has no power to remit the child or young person to the youth court for that court to decide mode of trial** ***[How to commit for sentence? ]*** Three powers of committal for sentence under the SA 2020 are relevant to children and young people: - s\. 16 (which applies where the accused pleads guilty to, or is found guilty of, an offence to which s. 249 applies) - s\. 17 (which applies where the accused pleads guilty to, or is found guilty of, an offence for which an extended sentence under s. 255 may be imposed) - s\. 19 (which applies where the accused is sent for trial for one or more offences but also indicates a guilty plea for one or more other offences). From 28 April 2022), where a child or young person is committed to the Crown Court for sentence, the Crown Court may remit the offender to a youth court acting for the place where the convicting court sat. This is likely to be done where the Crown Court considers that the powers of the youth court are in fact adequate to deal with the case. ***[What are the general sentencing powers? ]*** - All the sentences and other orders provided for by statute for use in respect of offenders under the age of 18 are at the disposal of the youth court following conviction of a child or young person, with the **exception of long-term detention, which is available only to the Crown Court.** a. detention and training orders (see E15.10 for details); b. fines (see E5) --- in the case of young offenders, fines are limited by virtue of the MCA 1980, s. 24(3) and (4), to a maximum of £1,000 in the case of offenders who are aged 14 to 17, and a maximum of £250 where the offender is aged 10 to 13 (or the maximum specified for the offence, if less); c. youth rehabilitation orders under the SA 2020, s. 179 (see E11.2); d. referral orders and reparation orders (see E3 and E4 for details); and e. absolute and conditional discharges (see E2 for details). Youth **court can also make ancillary orders, such as a compensation order.** By virtue of the SA 2020, s. 139(2), **the maximum amount of compensation that can be ordered in respect of an offence where the offender is under the age of 18 is £5,000**. **Where such an offender is convicted of several offences, there is no restriction on the aggregate sum of compensation** (i.e. the offender may be ordered to pay up to £5,000 for each offence). **Where a young offender asks for offences to be taken into consideration, compensation may be ordered in respect of those offences but the total amount ordered must not exceed the maximum which could be ordered for the offence(s) of which he or she has actually been convicted (s. 139(3)).** The youth court is also empowered to make certain orders against the parents of a young offender, namely binding the parents over or making a parenting order. ***[What are detention and training orders? ]*** The detention and training order is **available to youth courts and to the Crown Court in respect of offenders aged under 18, but aged at least 12, when convicted, who have been convicted of an offence punishable with imprisonment in the case of an adult**. The **effect of the order is that the offender is subject, for the term specified in the order, to a period of detention and training followed by a period of supervision** (ss. 233 and 234). Where an **offender is aged 17 at the date of conviction but is aged 18 or over when sentenced, the sentence takes effect as a detention and training order rather than a sentence of detention in a young offender institution.** This section applies **where a detention and training order is available.** The court may not make a detention and training order if it imposes--- a. a **sentence of detention under section 250, or** b. **an extended sentence of detention under section 254,in** respect of the offence. If **the offender is aged under 15 when convicted the court may not make a detention and training order unless it is of the opinion that the offender is a persistent offender**. The **court's power to make a detention and training order is subject to (in particular) section 230 (threshold for imposing discretionary custodial sentence).** A **detention and training order cannot be imposed on an offender aged ten or 11 at date of conviction.** Power to pass a detention and training order on a young offender aged under **15 at the time of conviction is limited to cases in which the offender qualifies as a 'persistent' offender.** - It was held that **formal cautions on the record are relevant in determining persistence. Formal cautions for juveniles were replaced by reprimands** and warnings under the CDA 1998, and by youth cautions under the LASPO 2012, but it is clear that these are to be regarded as relevant in the same way. A **finding of persistence may be derived from previous convictions and from orders which require an admission or finding of guilt, such as restorative justice disposals and conditional cautions, but not penalty notices for disorder**. The guideline says that **a child or young person who has committed one previous offence cannot reasonably be classed as a persistent offender** and **should not necessarily be assumed to be one if he or she has committed two or more.** If there **have been three findings of guilt (or other orders requiring an admission of guilt) in the past 12 months for imprisonable offences of a comparable nature, the court could certainly justify classing the child or young person as a persistent offende**r. If **the child or young person is being sentenced on a single appearance for a series of separate, comparable offences committed over a short space of time, the court could justifiably consider the child or young person to be a persistent offender**. The term of a detention and training order must be for a minimum of four months and a maximum of 24 months. Detention and training orders can be consecutive. ***[What are youth rehabilitation orders? ]*** A **youth rehabilitation order is the appropriate community sentence for offenders aged under 18 when convicted**. The **maximum length of a YRO is three years.** The order involves **the imposition of one or more youth rehabilitation requirements**. In addition to the 'standard' YRO, and specified as an alternative to custody, the court has power to make i. a YRO with intensive supervision and surveillance (see E11.22), or ii. a YRO with fostering This **section applies where a court is dealing with an offender for an offence and a youth rehabilitation order is available.** The court must not make a youth rehabilitation order unless it is of the opinion that--- a. the offence, or b. the combination of the offence and one or more offences associated with it, **was serious enough to warrant the making of such an order**. In forming its opinion for the purposes of subsection (2), the court **must take into account all the information that is available to it about the circumstances of the offence, or of it and any associated offence or offences, including any aggravating or mitigating factors**. The **pre-sentence report requirements** (see section 30) apply to the court in relation to forming that opinion. The fact that, by virtue of subsection (2), **the court may make a youth rehabilitation order does not require it to do so.** Before making a youth rehabilitation order, **the court must obtain and consider information about---** a. the **offender's family circumstances**, and b. the **likely effect of a youth rehabilitation order on those circumstances**. ***[What are referral orders? ]*** A **referral order is an order which requires an offender under the age of 18 when convicted to attend meetings of a youth offender panel established for the offender by a youth offending team and by virtue of which the offender is required to comply for a specified period with a programme of behaviour to be agreed between the offender and the panel**. A **youth court or, exceptionally, an adult magistrates' court, dealing with an offender under the age of 18 for whom this is a first conviction, is in certain circumstances required to sentence the young offender by ordering referral to a youth offender panel**. In other circumstances the court has discretion to deal with the young offender in that way. The **Crown Court has no power to make a referral order, whether directly, or by purporting to exercise the powers of a district judge under the Courts Act 2003, s. 66, to do so.** **The youth offender panel is composed of people with an interest or expertise in dealing with young people. The panel agrees a 'contract' with the offender and his or her family which is aimed at tackling the offending behaviour and its causes. The contract sets out certain requirements, which may include the young offender being required to apologise to, and carry out some form of reparation for, the victim of the offence, or to carry out community work, or to take part in family counselling or drug rehabilitation.** \(1) A referral **order is available to a court dealing with an offender for an offence where**--- a. the **court is a youth court or other magistrates' court**, b. the **offender is aged under 18 when convicted**, c. **neither the offence nor any connected offence is an offence the sentence for which is fixed by law**, d. the **court is not proposing to---** i. **impose a custodial sentence, or** ii. **make a hospital order** (within the meaning of the Mental Health Act 1983), in respect of the offence or any connected offence, e. the **court is not proposing to make---** i. an **order for absolute discharge, or** ii. **an order for conditional discharge,in respect of the offence,** and f. the **offender pleaded guilty to the offence or to any connected offence**. But a **referral order is not available unless the court has been notified by the Secretary of State that arrangements for the implementation of referral orders are available in the area in which it appears to the court that the offender resides or will reside** (and the **notice has not been withdrawn).** Where a referral order is available--- a. the **court must make a referral order if the compulsory referral conditions are met;** b. otherwise, **the court may make a referral order.** The compulsory referral conditions are met where--- a. the **offence is an imprisonable offence**, b. the **offender pleaded guilty to the offence and to any connected offence**, and c. the **offender has never been**--- i. **convicted by or before a court in the United Kingdom of any offence other than the offence and any connected offence, or** ii. **convicted by or before a court in another member State of any offence**. 86.--- A **referral order must specify---** a. the **youth offending team which is to establish a youth offender panel** for the offender, and b. the **period for which any youth offender contract which takes effect by virtue of the order is to have effect.** That period must be--- a. **not less than 3 months, and** b. **not more than 12 months.** The **youth offending team specified in the order must be the team which has the function of implementing referral orders in the area in which it appears to the court that the offender resides or will reside.** On **making a referral order the court must explain to the offender in ordinary language---** a. the **effect of the order**, and b. the **consequences which may follow**--- i. if **no youth offender contract takes effect between the offender and the panel**, or ii. **if the offender breaches a youth offender contract.** Nothing in this subsection affects the court's duty under section 52 (duty to give reasons for and explain effect of sentence). **As a referral order is a sentence that is only available upon pleading guilty there should be no further reduction of the sentence to reflect the guilty plea**. Where the court is dealing with the young offender for connected offences and **is passing more than one referral order, the court may order that the specified periods of the orders shall run concurrently or consecutively to one another**, but the **total period shall not exceed 12 months.** **Where a court makes a referral order on an offender who is already subject to one, the court may direct that any youth offender contract under the new order is not to take effect until the earlier order is revoked or discharged.**