Thursday 11 January 2007

This week we began by looking at a trial of Children and Young People. The CRIME AND DISORDER ACT 1998 received Royal Assent on 31st July 1998; many of its important provisions came into effect at the end of September 1998. During its passage through Parliament, Home Secretary Jack Straw, described the Act as “the most radical reform of the youth justice system since the Second World War”.

Part 1 seeks to assist the prevention of crime and disorder in a number of ways:

• requiring the police and other public authorities to develop local strategies for combating crime and disorder (ss5-7, 17);


• providing the courts and local authorities with increased powers to control anti-social behaviour committed by juveniles and young people;


• streamlining procedures in the Youth Court (ss37- 42)


• abolishing the presumption that a child is doli incapax (s34).

We shall cover each of these.

The general rule is that where a defendant is aged under 1 8 he must be dealt with in the Youth Court, unless the juvenile is jointly charged with an adult, when the case may either be heard in the adult Magistrates’ Court or the Crown Court.

Each petty sessional division has a youth court panel consisting of magistrates appointed because of their suitability for dealing with juvenile cases.

The Youth Court has the following characteristics:

• The public are not allowed in Youth Courts. The only persons who have a right to he present are those directly concerned (the magistrates, court officials, witnesses, parties, legal executives having conduct of the case and trainee solicitors when under training and subject to the concurrence of the court). The press have a right to attend but may not report the name of any juvenile involved or any information which might identify such a juvenile (the Youth Court may lift this restriction to avoid injustice to a juvenile). Apart from the members of the probation service and social workers, other persons must be specifically authorised to attend.


• The bench must consist of no more than three magistrates, one of whom must be a man and one a woman, although in exceptional circumstances the court may waive this rule.


• s48 CRIME AND DISORDER ACT 1998 amends Schedule 2 CHILDREN AND YOUNG PERSONS ACT 1933 empowering stipendiary magistrates to sit alone in a Youth Court.


• A juvenile is not asked to plead guilty or not guilty, he is simply asked whether he admits or denies the alleged offence. Likewise where the bench decide that the juvenile charged did commit the offence they record a finding of guilt, not a conviction.


• Youth Court proceedings are generally less formal than those of the adult court.

The juvenile sits on a chair facing the magistrates, not in the dock. He will normally be accompanied by his parents (who may speak for him if he is not represented). The juvenile is addressed by his first name and the more formal language of the adult court is avoided when speaking to him.

Where a juvenile is to be tried summarily he should be tried in a Youth Court unless:

• he is charged jointly with an adult. If the adult and juvenile are charged jointly with a summary offence then the trial will be in the adult court unless the adult pleads guilty and the juvenile denies the offence, in which case the court has a discretion to remit the juvenile to the Youth Court for trial. If the juvenile and adult are charged with a matter which is triable either way, then provided that the adult elects to have the matter dealt with in the magistrates’ court the same procedure will follow. If the adult and juvenile both plead not guilty then the trial will take place in the adult Magistrates’ Court; unless

• the juvenile appears with an adult, but is charged on a separate information which alleges that he aided and abetted the adult or vice versa (here there is a discretionary power to hold a joint trial in the adult court); or


• the juvenile appears with an adult charged with an offence arising out of circumstances the same as, or connected with, those giving rise to the charge against the adult (here there is a similar discretion to hold a joint trial). An illustration of this would be a juvenile charged with burglary and an adult charged with handling the items which the juvenile has allegedly stolen; or


• the adult court begins to hear the case in the mistaken belief that the juvenile is an adult.

When a juvenile is tried in the adult Magistrates’ Court, the rules relating to attendance of parents and restriction of reporting apply.

s47(1) CRIME AND DISORDER ACT 1998 provides the Youth Court with a discretionary power to remit a juvenile to an adult Magistrates’ Court for trial, where, before trial, he reaches the age of 18.

s24 Magistrates’ Courts Act 1980 requires that a juvenile must be tried either in a Youth Court or in an adult Magistrates’ Court, save in the circumstances set out below:

• He is charged with an offence of homicide.


• He is jointly charged with an adult with an indictable offence and the magistrates consider it necessary in the interests of justice to commit both accused for trial at the Crown Court.


• He has reached the age of 14 and the magistrates consider that he could properly be sentenced under s53(2) CHILDREN AND YOUNG PERSONS ACT 1933, if convicted on indictment. This applies where a person aged 21 or more could be sentenced to 14 years’ imprisonment on conviction on indictment and enables the Crown Court to order that a juvenile convicted of such an offence be detained in accordance with the Home Secretary’s directions for a period not in excess of the maximum term of imprisonment which could have been imposed. The CRIMINAL JUSTICE ACT 1993 has extended the s53 sentencing powers for serious offences to young offenders convicted of causing death by dangerous driving (s1 ROAD TRAFFIC ACT 1988) or of causing death by careless driving when under the influence of drink or drums (s3A RTA 1988).

The decision on whether the juvenile is tried summarily or on indictment is taken by the magistrates, applying the relevant statutory provisions. The juvenile never has the right to choose trial on indictment.

The right of a person to elect trial on indictment applies after he has reached 18. Where he is under 18, s24 MAGISTRATES’ COURTS ACT 1980 applies and he will usually be charged in the Youth Court.

s56 CHILDREN AND YOUNG PERSONS ACT 1933 provides the general rule that where the juvenile is convicted on indictment in the Crown Court, he must be committed to the Youth Court for sentence subject to the following exceptions: first, where the juvenile has been convicted of homicide and second where it would be “undesirable” to remit the accused to the Youth Court for sentence.

In R v Lewis [1984], Lord Lane mentioned some of the reasons where it would be “undesirable” for the juvenile to be remitted to the Youth Court:

• that the judge, having presided over the trial of a not guilty plea by the juvenile, will be better informed about the case than the Youth Court;


• that the juvenile and the adult have been convicted on a joint charge, and sentencing the juvenile in the Youth Court and the adult in the Crown Court would entail an unacceptable risk of disparity in sentencing;


• that remitting would cause delay, unnecessary duplication of proceedings and additional expense.

The effect of the decision is that youths are invariably sentenced by the Crown Court.

Where a juvenile is aged between 15-17 years inclusive, is found guilty of an indictable offence by the youth court and the court considers that he should be sentenced to more than six months detention, which is the maximum available to a Youth Court under s37 MAGISTRATES’ COURTS ACT 1980, it may commit him to the Crown Court to be sentenced. The Crown Court can pass a sentence of up to 24 months on the offender or impose any punishment which could have been imposed by the youth court.

In addition, when finding the case proven against a juvenile, the Crown Court has the following powers to sentence.

Detention and training orders were created by ss73-79 CRIME AND DISORDER ACT 1998. A detention and training order will be available to the Crown Court, the Youth Court, and the adult Magistrates’ Court in respect of an offender under 18 who has been convicted of an offence punishable with imprisonment in the case of an adult offender.

The orders are available for:

• 15-17 year olds, for any imprisonable offence sufficiently serious to justify custody under s1 CRIMINAL JUSTICE ACT 1991;


• 12-14 year olds, who are in the opinion of the court, persistent offenders, for offences serious enough to justify custody under the 1991 Act;


• 10-11 year olds, for persistent offending, and, only when, the court considers that custody is sufficient to protect the public from further offending

The “order” will be a custodial sentence for the purposes of s31 CRIMINAL JUSTICE ACT 1991. This means that the court must satisfy the general criteria for imposing a custodial sentence under the 1991 Act. An order will not be made unless the court has heard a pre-sentence report, unless the court considers it to be “unnecessary”: s3 CRIMINAL JUSTICE ACT 1991.

s73(5) CRIME AND DISORDER ACT 1998 provides that the period of the order should be for one of the specific periods laid down in the Act. The duration of the order will be for either 4,6, 8, 10, 12, 18 to a maximum of 24 months. The juvenile will boon a period of supervision halfway through the sentence, which will end when the full term expires. It should be noted that the s24(3) Magistrates’ Courts Act 1980 applies to the sentencing powers of the Youth Court, (or Magistrates’ Court) limiting the length of the imposition of a custodial sentence to a maximum of six months.

Where the juvenile breaches the supervision requirement of the detention and training order, s77(3) of the 1998 Act provides that the court may impose a fine not exceeding £1,000, or by ordering the offender to be returned to custody for a period not exceeding the remainder of the full term, or for three months whichever is the shorter.

Where the juvenile commits a further offence which is punishable with imprisonment in the case of an adult during the supervision period, the court dealing with the juvenile for the later offence, whether or not it imposes any other sentence, order the offender to be detained for a period which begins with the date of the court’s order, and is equal in length to the period of the full order which remains unexpired at the time when the new offence was committed. The period of detention must be served before, or, concurrently, with any sentence imposed for the new offence.


ss67 and 68 make provision for a reparation order, a new disposal requiring a young offender to make reparation to the victim of the offence or to the community at large.

s67 gives the court the power to make a reparation order. Reparation will be supervised by a probation officer, social worker or a member of the youth offending team. The purpose of the order will be to help the young offender understand and face up to the consequences of their actions and to offer some practical recompense to the victim.

Reparation orders have been piloted in designated areas for 18 months from September 1998, with a view to national implementation during 2000-2001.

Action plan orders are created under ss69 and 70 and make provision for an action plan order, a new community sentence specifically tailored to address the cause of a child or young person’s offending behaviour. The action plan order is a community sentence for the purposes of part 1 CRIMINAL JUSTICE ACT 1991. The court may make an action plan order when it considers that to do so will prevent the offender from re-offending or rehabilitate the offender. The order will require the offender to comply with a three month action plan, supervised by a probation officer, social worker or a member of the youth offending team.

We then began looking at committal proceedings. When an accused is to be tried on indictment his trial must take place in the Crown Court. Such trials are expensive and time consuming. Further, there is usually a substantial waiting list for trials on indictment and this means that an accused remanded in custody may be detained for a substantial period before trial, and, even if released on bail, he will quite possibly be subject to stress and anxiety before trial.

In order to filter out prosecutions with little prospect of success, nearly all trials on indictment are preceded by a preliminary hearing in the Magistrates’ Court, otherwise known as committal proceedings. The Crown Prosecution Service must ensure that there is a more than reasonable chance of success and, should a case be inherently weak, should withdraw the case at an early stage. Notwithstanding the review that takes place by the lawyers within the Crown Prosecution Service, some cases require that the prosecution demonstrates that there is a reasonable or prima facie case which it would be proper for the accused to answer at the Crown Court. Magistrates in committal proceedings are often referred to as Examining Justices.

The onus is on the prosecution to show that there is a prima facie case and the Court of Appeal has given guidance as to how a court should approach the submission of “no case to answer”. In R v Galbraith [1981] the court said that if there was no evidence that the accused committed the crime alleged by the prosecution the court should stop the case forthwith and agree with a defence submission of “no case to answer”. These cases are relatively rare but sometimes occur when witnesses fail to attend court. A prosecutor faced with that situation should normally seek either to adjourn the case to compel the witness’s attendance or, alternatively, should withdraw the case. Notwithstanding the above observation, it does from time to time happen that the Crown produces little or no evidence to implicate the accused.

It is more problematic where the evidence the prosecution brings is of a tenuous character either because of its weakness or vagueness or because it is inconsistent with other evidence produced by the prosecution. The test is that if the prosecution evidence, taken at its highest, is such that a jury properly directed could not convict on it, the court should accede to a submission of “no case to answer”. It is important to note the word “could” not “would”. The standard of proof, therefore, in committal proceedings is far lower than that which the Crown must attain in a trial before a jury at the Crown Court or in a trial in the Magistrates’ Court.

Committal proceedings may take place before a single magistrate but it is normal practice for two magistrates to sit. Jurisdiction to hold a preliminary hearing is governed by the MAGISTRATES’ COURTS ACT 1980 s2(3) which merely requires that an accused is brought before the court charged with an indictable offence. It is normal practice to bring the accused before the Magistrates’ Court for the area where the alleged offence was committed.

We’ll take a look next week.