Naomi Redhouse and Mark Ashford

Transcription

1 The Youth Justice System Good Defence Practice Naomi Redhouse and Mark Ashford Update to Training Materials The Law Society Friday 26 th November CPD hours Course Reference: FG/LCCS/

2 Good Defence Practice - Update Police Powers Stop and search for criminal damage offences s1 Criminal Justice Act 2003 (CJA) amends s1(8) PACE Power to stop and search for items connected to offences of criminal damage added to existing powers. Dispersal of groups s30 Criminal Justice Act gives the police power to designate areas where they can disperse groups causing or likely to cause intimidation, harassment, alarm or distress to the public a group is two or more persons anti-social behaviour must be a significant and persistent problem for authorisation authorisation limited to 6 months power to order persons whose place of residence is not within the relevant locality to leave the relevant locality power to prevent return within a period up to 24 hours directions may be given orally exceptions those engaged in lawful industrial action and public processions failure to comply arrestable, summary offence : maximum penalty for an adult- 3 months and/or level 4 fine s.30(6) A constable in uniform who finds in a public place, between the hours of 9pm and 6am, a person who he believes to be under the age of 16 years and not under the effective control of a parent or responsible person aged 18 or over, may take them home unless the constable has reasonable grounds to believe that the person would be at risk of significant harm if taken home. Where this power is exercised, any local authority whose area includes all or part of the locality must be notified. The Youth Justice System Good Defence Practice Volume 2 Page 1

3 s31 CJA contains the pre- requisites for authorisation: in writing signed by the relevant officer specifying locality, grounds and period consent of the local authority consultation and publicity, including public notices A Code of Practice covering these provisions may be issued. Home Office Circular 04/2004 Penalty Notices for Disorderly Behaviour s87 Anti-Social Behaviour Act 2004 (ASBA) amends the Criminal Justice and Police Act 2001 by extending the existing penalty notice scheme to 16 and 17 year olds and contains an authority for the Home Secretary to extend the provision to a lower age group in the future. Street bail s4 Criminal Justice Act 2003 s30 PACE is amended to permit police officers to bail a suspect before reaching the police station. No distinction made between adults and children and young people, save the contacting by telephone of parents to inform them. Home Office Circular 61/2003 If granting bail in these circumstances the officer must give that person a notice in writing before release stating the offence for which he was arrested and the ground on which he was arrested. The notice must also inform him that he is required to attend a police station. The notice does not have to specify the police station at which he is required to attend and the time of attendance. If it does not, the information must be given in a further notice. The Youth Justice System Good Defence Practice Volume 2 Page 2

4 The obligation to attend the police station can only be cancelled by written notice. There is no power to impose conditions other than attendance at the police station. There is a power of arrest in respect of a person who fails to attend as required. In the Police Station s28 Criminal Justice Act 2003 & Schedule 2 Provisions for charging or release of persons in police detention The statutory charging scheme is being introduced nationwide. It involves the transfer from the police to the DPP(acting through local Crown Prosecutors) of the responsibility for deciding whether there is sufficient evidence to charge a detained person in relation to the majority of offences. Any such decision by the CPS is mandatory. The CPS also assumes the power to direct the issuing of a formal caution, reprimand or final warning. s37 PACE is amended to create three possibilities for those in police detention: release without charge but on bail release without charge and without bail being charged Where a suspect is released on bail without charge the police will be under a duty to inform him that he is being released so that the file can go to the CPS for a decision as to whether to charge and with which offence. In these circumstances custody officers can impose conditions on pre-charge bail. The custody officer retains the power to bail for further investigation before taking the case to the CPS for a charging decision. In these circumstances there is no power to impose bail conditions. An entirely new s37(b) sets out the duties of the police in liasing with the CPS, and the obligations of the CPS. Once a person has been bailed without charge an officer involved in the investigation must, as soon as practicable, notify the DPP of any information that the DPP requires. It is then the task of the DPP to decide whether there is sufficient evidence for the commission of an offence to lead to charge. The tests remain the same a realistic prospect of conviction and in the public interest to proceed. In considering the public interest the DPP must consider s37(5) the possibility of a caution now known as a conditional caution under s22-s27 CJA The Youth Justice System Good Defence Practice Volume 2 Page 3

5 The prosecutor s decision is to be communicated to the officer in writing. If a caution is offered the custody officer should notify the suspect in writing. The prosecutor s decision will be binding on the police, but if a caution is offered or it is not possible to administer it, the suspect will be charged. Where it is felt that a suspect cannot be bailed, a threshold test will be applied whether: in all the circumstances of the case there is a reasonable suspicion against the suspect of having committed an offence, and that at that stage it is in the public interest to proceed Addendum to CPS Code for Crown Prosecutors May 2004 A review date will be set for the gathering of evidence and review of the charges. This likely to be subsumed into the prosecution s continuing duty to review. Note: Implications for those attending police stations who wish to make representations. Prosecutions under s13 Sexual Offences Act 2003 This provision was subject to much discussion on the passage of the legislation through Parliament. It effectively criminalises sexual activity between young teenagers and reliance is placed on the good sense of prosecutors. New guidance to the CPS is awaited, meanwhile: There will be no prosecutions for sexual activity between children under the age of 16 where the activity is genuinely consensual, but the criminal law must cover under-age sexual activity in order to protect those who are victims of abuse. David Blunkett Sexual Offences Bill receives Royal Assent Home Office Press Release, 24 th November 2003 The Youth Justice System Good Defence Practice Volume 2 Page 4

6 Drug testing after charge s5 Criminal Justice Act 2003 amending ss38 & 63B PACE A sample of urine or a non-intimate sample may be taken from a person in police detention for the purpose ascertaining whether s/he has any specified Class A drug in his/her body. A person who fails without good cause to give a sample shall be guilty of an offence. Maximum penalty in the case of an adult is 3 months imprisonment a DTO could not therefore be imposed on a young person for this offence. Drug testing may only take place if the suspect has attained the age of 14 and has been charged with: a trigger offence; or any offence but only if a police officer of at least the rank of inspector, who has reasonable grounds for suspecting the misuse by the suspect of any specified Class A drug caused or contributed to the offence, has authorised the sample to be taken An appropriate adult must be present for the request for the sample, the giving of the statutory warning on consequences of non-compliance and for the administration of the test in the case of those under 17 years This provision is currently being piloted in selected police stations in Cleveland, Humberside, Greater Manchester, London, Nottinghamshire, Merseyside and West Yorkshire. The Youth Justice System Good Defence Practice Volume 2 Page 5

7 Bail at Court Reasons for imposing bail conditions s13, s15 (partially), s16, s17 and ss19-21 CJA 2003 s13(1) (2) & (3) Amends s3(6) of the Bail Act 1976 so as to enable bail conditions to be imposed for a defendant s own protection, or, if a child or young person, for his own welfare or in his own interests. Previously the court had power to refuse bail in these circumstances, but not to impose conditions for these reasons. s13(4) Amends paragraph 5 of Part 2 of Schedule 1 to the Bail Act Where a person has been arrested under s7 of the Bail Act, i.e. breach of conditions of bail, before bail can be refused on this ground the court must give reasons why it is satisfied that there are substantial grounds for believing that if released on bail the defendant would fail to surrender to custody, commit an offence on bail, interfere with witnesses or otherwise obstruct the course of justice. Previously no reasons had to be given. s15(3) Revokes s127 of the Magistrates Courts Act This prevented proceedings (for failure to appear at court) being instituted more than six months after the commission of an offence under s6 of the Bail Act It is now the position that where a person has been released on bail granted by a police officer, an offence under s6 can be brought if an information is laid within six months of the commission of the offence, or within three months of the defendant s surrender to custody, arrest or court appearance in respect of the offence. s16 Appeals to Crown Court. This section creates a new right of appeal to the Crown Court against the imposition by a Magistrates Court of certain conditions of bail. The conditions which may be challenged relate to:- residence surety security curfew electronic monitoring conditions preventing contact with another The Youth Justice System Good Defence Practice Volume 2 Page 6

8 Making the decision on Jurisdiction Grave crimes Sexual offences The following sexual offences may be treated as grave crimes notwithstanding the fact that the maximum sentence is less than 14 years: (a) for offences committed before 1 May 2004: indecent assault upon a woman, contrary to Sexual Offences Act 1956 s14; and indecent assault upon a man, contrary to Sexual Offences Act 1956 s15 (only for offences committed on or after 1 October 1997). (b) for offences committed on or after 1 May 2004: sexual assault contrary to the Sexual Offences Act 2003 s3; child sex offences committed by children and young persons contrary to the Sexual Offences Act 2003 s13; sexual activity with a child family member contrary to Sexual Offences Act 2003 s25; and inciting a child family member to engage in sexual activity contrary to section 26 of the Sexual Offences Act 2003 s26. Firearms possession Even thought the maximum penalty is only 10 years, offences under subsections (1)(a), (ab), (aba), (ac), (ad), (af) or (c) of section 5 of the Firearms Act 1968 (prohibited weapons) or under subsection (1A)(a) of that section may also be grave crimes, provided: the offence was committed after 22 January 2004; and at the time of the offence the offender had attained 16; and the court is of the opinion that there are no exceptional circumstances justifying its not imposing at least the mandatory minimum sentence of three years detention. The Youth Justice System Good Defence Practice Volume 2 Page 7

9 Fatal driving offences Prior to 27 February 2004 the offences of causing death by dangerous driving and causing death by careless driving whilst under the influence of drink or drugs were only punishable in the case of an adult with 10 years imprisonment. Express statutory provision allowed these offences to be treated as grave crimes but only in the case of an offender who had attained the age of 14. With the implementation on 27 February 2004 of the Criminal Justice Act 2003 s285 the maximum penalty was increased to 14 years for the following offences: causing death by dangerous driving contrary to the Road Traffic Act 1988 s1; causing death by careless driving whilst under influence of drink or drugs contrary to Road Traffic Act 1988 s3a; aggravated vehicle-taking resulting in death contrary to the Theft Act 1968 s12a(4). Section 285 does not have retrospective effect, therefore it is only for offences committed on or after 27 February 2004 that these three offences may now be treated as grave crimes for any child or young person. The Youth Justice System Good Defence Practice Volume 2 Page 8

10 Parental involvement Parenting contracts Anti-Social Behaviour Act 2003 s25 - in force since 27 February Where a child or young person has been referred to a youth offending team, that team may enter into a parenting contract with a parent or guardian of that child or young person, if a member of that team has reason to believe that the child or young person has engaged, or is likely to engage, in criminal conduct or anti-social behaviour. A parenting contract is a document which contains: a statement by the parent or guardian that s/he agrees to comply for a specified period with requirements specified in the contract; and a statement by the youth offending team agreeing to provide support to the parent or guardian for the purposes of complying with the contract. The contract requirements imposed on a parent or guardian should have the purpose of preventing the child or young person from engaging in criminal conduct or anti-social behaviour. The contract may include a requirement for a parent or guardian to attend a counselling or guidance programme. A parenting contract must be signed by the parent and signed on behalf of the youth offending team. Youth offending teams must, in carrying out their functions in relation to parenting contracts, have regard to any guidance which is issue by the Secretary of State from time to time for that purpose. The Home Office, DCA and Youth Justice Board have jointly issued guidance - see Guidance on the Anti-Social Behaviour Act 2003 Part 3: Parenting contracts and orders. Amendments to parenting orders Parenting order after referral by a youth offender panel PCC(S)A 2000 Sch 1 Part 1A inserted by s324 & schedule 34 CJA 2003 If the parent or guardian named in a referral order fails to attend the subsequent panel meeting, s/he can be referred by the panel to a youth court The Youth Justice System Good Defence Practice Volume 2 Page 9

11 acting for the petty sessional area in which it appears to the panel that the offender resides or will reside. Such a referral may only take place if the offender is still under the age of 18 on the date when the parent or guardian fails to attend the meeting. The youth offender panel shall make the referral by sending a report to the youth court explaining why the parent or guardian is being referred. Where a youth court receives such a report it may secure the attendance of the parent or guardian by issuing a summons or by issuing a warrant. Where the parent or guardian is brought before the youth court, it may make a parenting order in respect of the parent or guardian if: it is proved to the satisfaction of the court that the parent or guardian has failed without reasonable excuse to comply with an order to attend the panel meeting.; and the court is satisfied that the parenting order would be desirable in the interests of preventing the commission of any further offence by the offender. Before making a parenting order under this provision in the case of an offender under the age of 16, the court shall obtain and consider information about the offender s family circumstances and the likely effect of the order on those circumstances. Free-standing parenting order s27 Anti-Social Behaviour Act 2003 A youth offending team may apply to a magistrates court for a parenting order in respect of the parent or guardian of a child or young person who has been referred to the team. When an application is made, the court may make a parenting order if it is satisfied that: the child or young person has engaged in criminal conduct or antisocial behaviour; and making the order would be desirable in the interests of preventing the child or young person from engaging in further criminal conduct or further anti-social behaviour. Before making a parenting order under this provision in the case of a child or young person under the age of 16, the court shall obtain and consider information about the child or young person s family circumstances and the likely effect of the order on those circumstances. The Youth Justice System Good Defence Practice Volume 2 Page 10

12 In deciding whether to make a parenting order, a court must take into account (amongst other things): any refusal by the parent to enter into a parenting contract in respect of the child or young person; and if the parent or guardian has entered into such a parenting contract, any failure by the parent or guardian to comply with the requirements specified in the contract. Applications for free-standing parenting orders should be made by complaint and in the form set out in Schedule 1 of the Magistrates Courts (Parenting Orders) Rules 2004 SI 2004/247. The Youth Justice System Good Defence Practice Volume 2 Page 11

13 Sentencing Pre-sentence drug testing (pilot areas only) s161 CJA Where a person aged 14 or over is convicted of an offence and the court is considering passing a community sentence, it may order the offender to provide samples for the purposes of ascertaining whether s/he has any specified Class A drug in his/her body. Where the offender has not attained the age of 17, the order must provide for the samples to be provided in the presence of an appropriate adult, defined as: the offender s parent or guardian, or if s/he is in the care of a local authority or voluntary organisation, a person representing that authority or organisation; or a social worker of a local authority social services department; or if no person falling into the above two categories is available, any responsible person aged 18 or over who is not a police officer or a person employed by the police. A court may not order an offender to provide a drugs sample unless it has been notified by the Home Secretary that the power to make such orders is exercisable by the court and the notice has not been withdrawn. If it is proved to the satisfaction of the court that the offender has, without reasonable excuse, failed to comply with an order to provide a drugs sample, it may fine him/her. The Youth Justice System Good Defence Practice Volume 2 Page 12

14 Deferring Sentence s278 CJA 2003 pilots from Dec 2004, implementation April 2005 The Criminal Justice Act 2003 has substantially reworked the provisions for deferring sentence. In particular it has made provision for the court to outline requirements to be complied with during the period of deferment and introduced a power to appoint a supervisor to monitor compliance with the requirements. There will therefore be much greater scrutiny of the young offender during the period of deferment. This may mean that the power is exercised more frequently. Power to defer A court may defer passing sentence on an offender for the purposes of enabling the court, or any other court to which it falls to deal with him, to have regard in dealing with him to: his/her conduct after conviction (including, where appropriate, the making by him/her of reparation for his/her offence); or any change in his/her circumstances. A court may only defer sentence if: the offender consents; the offender undertakes to comply with any requirements as to his/her conduct during the period of the deferment that the court considers it appropriate to impose; and the court is satisfied, having regard to the nature of the offence and the character and circumstances of the offender, that it would be in the interests of justice to exercise the power. On deferring sentence the court must specify the date on which the offender must return to court. This may not be more than six months after the date of deferment. A sentence may only be deferred once. On deferring sentence, the court is deemed to be adjourning sentence. may not remand the offender on bail. It Requirements The court may include a requirement as to the residence of the offender during the whole or any part of the period of deferment. Appointment of a supervisor Where an offender has undertaken to comply with requirements, the court which is deferring sentence may appoint as the offender s supervisor: an officer of a local probation board; or any other person whom the court thinks appropriate. The Youth Justice System Good Defence Practice Volume 2 Page 13

15 In the case of a young offender the other appropriate person could be a member of a youth offending team. A supervisor may not be appointed without his/her consent. The duties of the supervisor are: to monitor the offender s compliance with the requirements; and to provide the sentencing court with such information as the court may require relating to the offender s compliance with the requirements. Final sentencing hearing When passing sentence at the end of a period of deferment, the court may deal with the young offender in respect of the offence in any way in which the original court could have dealt with him/her if it had not deferred passing sentence. The relevant age for the purposes of sentence is the age of the offender at the date of conviction, not the date of final sentence. In order to determine compliance with the requirements of the deferment, the court may request the attendance of the supervisor at the sentencing hearing. If the supervisor will not attend voluntarily, the court may summons him/her to attend as a witness. If there has been substantial compliance with the requirements, the defendant has a legitimate expectation that s/he will not receive a custodial sentence. If there has not been substantial compliance, the court should carefully outline in which areas the defendant has failed R-v-George(1984) 6 Cr App R (S) 211 CA If the offender does not attend the deferred sentencing hearing, the court may issue a summons or a warrant for his/her arrest. Dealing with the offender before the deferred sentence date The court may deal with the offender before the deferred sentence date if: the supervisor reports that the offender has not complied with the requirements of deferment; or the offender has been convicted of an offence committed since sentencing was deferred. If the offender is not already before the court, it may issue a summons or warrant for his/her arrest. Where a different court is dealing with offences committed during the period of deferment, it may also deal with the offence(s) for which sentence was deferred, except that: a youth court may not deal with offences where sentence was deferred by the Crown Court; and the Crown Court, in dealing with an offence for which sentence was deferred by a youth court, is limited to the sentencing powers of the youth court. The Youth Justice System Good Defence Practice Volume 2 Page 14

16 Is deferment appropriate? In the case of children and young persons deferring sentence should be used sparingly. As Lane LCJ said in R v George the court should have a clear idea of the purpose of the deferment and it should not just be used to avoid a difficult decision. On many occasions a short supervision order would serve the same purpose by providing regular supervision of the offender's conduct as well as providing practical support. However, a deferment may be appropriate where the court's expectations are not sufficiently precise to include in the requirements of a supervision order. Deferring sentence can have practical disadvantages for a young offender. The court may be expecting a substantial change in the offender's lifestyle, yet without a supervision order being in place there may be very little support from the local authority. A deferment of up to six months will seem like a very long time to a young offender and postpones the time when s/he will end his/her contact with the criminal courts as well as delaying the time when the conviction will be spent under the Rehabilitation of Offenders Act The Youth Justice System Good Defence Practice Volume 2 Page 15

17 Action plan orders CJA schedule 24 para 1(2) amending s70 PCC(S)A Ordering drug treatment and testing (pilot areas only) The sentencing court may include a requirement for the offender to undergo drug treatment and testing where it is satisfied: that the offender is dependent on, or has a propensity to misuse, drugs; and that his/her dependency or propensity is such as requires and may be susceptible to treatment. The requirement must specify: the period for which the offender must submit to treatment ( the treatment period ) and the person with the necessary qualifications and experience who will provide directions to the offender for his/her treatment ( the treatment provider ). The drug treatment shall be: treatment as a resident in such institution or place as may be specified in the order; or treatment as a non-resident at such institution or place, and at such intervals as may be so specified. A drug treatment requirement may not be included in an action plan order: (a) in any case, unless: the court is satisfied that arrangements have been or can be made for the treatment intended to be specified in the order (including arrangements for the reception of the offender where s/he is to be required to submit to treatment as a resident) and the requirement has been recommended to the court as suitable for the offender by an officer of a local probation board or a member of a youth offending team; and (b) in the case of an order made in respect of an offender aged 14 or over, unless s/he consents to its inclusion. A testing requirement is a requirement that, for the purpose of ascertaining whether s/he has any drug in his/her body during the treatment period, the offender shall during that period, at such times or in such circumstances as may be determined by the responsible officer or the treatment provider, provide sample of such description as may be so determined. A drug testing requirement may not be included in an action plan order unless: the offender is aged 14 or over and s/he consents to its inclusion, and The Youth Justice System Good Defence Practice Volume 2 Page 16

18 the court has been notified by the Secretary of State that arrangements for implementing such requirements are in force in the area proposed to be specified in the order. A testing requirement shall specify for each month the minimum number of occasions on which samples are to be provided. An action plan order including a testing requirement shall provide for the results of tests carried out on samples provided by the offender in pursuance of a requirement to a person other than the responsible officer to be communicated to the responsible officer. Supervision orders Foster parent residence requirement (pilot areas only) This provision was introduced by the Anti-Social Behaviour Act 2003 Sch 2 para 4(5) amending PCC(S)A schedule 6. It was implemented on 30 September 2004 but is being piloted from October 2004 for an unspecified period. A court in a pilot area may impose a requirement that an offender live for a specified period with a local authority foster parent if: (a) the offence is punishable with imprisonment in the case of an offender aged 18 or over; (b) the offence, or the combination of the offence and one or more offences associated with it, was so serious that a custodial sentence would normally be appropriate (or, if the offender is aged 10 or 11, would normally be appropriate if the offender were aged 12 or over); and (c) the court is satisfied that (i) the behaviour which constituted the offence was due to a significant extent to the circumstances in which the offender was living, and (ii) the imposition of a foster parent residence requirement will assist in his/her rehabilitation. On sentence a foster parent residence requirement may not be specified to last longer than 12 months. It is, however, possible to apply subsequently for the order to be varied up to a maximum period of 18 months. A foster parent residence requirement may be imposed at the same time as any of the following additional requirements: participation in non-specified activities; participation in specified activities or an ISSP; a reparation requirement; refraining from specified activities; requirement as to education; and requirement as to psychiatric treatment. The Youth Justice System Good Defence Practice Volume 2 Page 17

19 On making a foster parent residence requirement, the court shall designate the local authority in whose area the offender lives as the authority who are to place the offender with a foster parent under the Children Act 1989 s22(2)(a). A court shall not impose a foster parent residence requirement unless: the court has been notified by the Secretary of State that arrangements for implementing such a requirement are available in the area of the designated authority; the notice has not been withdrawn; and the court has consulted the designated authority. A court may not impose a foster parent residence requirement on an offender who is not legally represented at the relevant time unless: s/he was granted a representation order but this was later withdrawn because of his/her behaviour; or s/he was informed of his/her right to apply for a representation order but nevertheless refused or failed to do so. The relevant time is the time when the court is considering whether or not to impose the requirement. Whilst a supervision order imposing a foster parent residence requirement is in force, there may be occasions when no suitable foster parent is available. This is most likely to occur when the offender s behaviour has meant that s/he has had to be removed from a placement and no other foster parent is able or willing to look after the offender. If no foster parent is available for whatever reason, the order shall be deemed to include a requirement to reside in local authority accommodation instead, provided the supervisor has informed the offender that no suitable foster parent is available and that an application to vary or revoke the order has been or will be made. These provisions are being piloted in Hampshire, Staffordshire and the London Boroughs of Redbridge and Waltham Forest. Curfews and directions s88 CJA Schedule 2 amends the provisions of the PCC(S)A in relation to curfew orders and supervision orders Curfew orders a court making a supervision order can also make a curfew order limitation to 3 months for under 16 years removed now 6 months same supervisor for both where supervision order imposed The Youth Justice System Good Defence Practice Volume 2 Page 18

20 Supervision orders supervisors directions extended from max 90 days to 180 specific directions in the order extended from max 90 days to 180 a requirement to reside with foster parent for up to 12 months (can be extended to 18 months) can be included by the court making the order if: (a) imprisonable offence (b) offence or offences so serious that custodial sentence normally appropriate (c) the court is satisfied that the offending was due to a significant extent to the home circumstances in which the offender was living and that this requirement will assist the offender s rehabilitation (d) consultation and legal representation required Drug treatment and testing (pilot areas only) These provisions are introduced by schedule 24 CJA amending PCC(S)A schedule 6: A court may include a requirement for the supervised person to undergo drug treatment and testing where it is satisfied: that the offender is dependent on, or has a propensity to misuse, drugs; and that his/her dependency or propensity is such as requires and may be susceptible to treatment. The requirement must specify: the period for which the offender must submit to treatment ( the treatment period ) and the person with the necessary qualifications and experience who will provide directions to the offender for his/her treatment ( the treatment provider ). The drug treatment shall be: treatment as a resident in such institution or place as may be specified in the order; or treatment as a non-resident at such institution or place, and at such intervals as may be so specified. A drug treatment requirement may not be included in a supervision order: (a) in any case, unless: the court is satisfied that arrangements have been or can be made for the treatment intended to be specified in the order The Youth Justice System Good Defence Practice Volume 2 Page 19

21 (b) (including arrangements for the reception of the offender where s/he is to be required to submit to treatment as a resident); and the requirement has been recommended to the court as suitable for the offender by an officer of a local probation board or a member of a youth offending team; and in the case of an order made in respect of an offender aged 14 or over, unless s/he consents to its inclusion. A testing requirement is a requirement that, for the purpose of ascertaining whether s/he has any drug in his/her body during the treatment period, the offender shall during that period, at such times or in such circumstances as may be determined by the supervising officer or the treatment provider, provide samples of such description as may be so determined. A drug testing requirement may not be included in a supervision order unless: the offender is aged 14 or over and s/he consents to its inclusion, and the court has been notified by the Secretary of State that arrangements for implementing such requirements are in force in the area proposed to be specified in the order. A testing requirement shall specify for each month the minimum number of occasions on which samples are to be provided. A supervision order including a testing requirement shall provide for the results of tests carried out on samples provided by the offender in pursuance of a requirement to a person other than the supervising officer to be communicated to the responsible officer. Dangerous offenders The Criminal Justice Act 2003 introduced new provisions to provide public protection against dangerous offenders. With modifications these provisions also apply to offenders under the age of 18. The provisions are contained in ss CJA and are currently due to be implemented in February Extended sentence for violent or sexual offences A court may pass an extended sentence if: The Youth Justice System Good Defence Practice Volume 2 Page 20

22 (a) (b) a person aged under 18 is convicted of a specified offence committed after [commencement]; and the court considers: (i) 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; and (ii) where the specified offence is a serious offence, that the case is not one in which the court is required to impose a sentence of detention. The extended sentence comprises: the appropriate custodial term; and an extension period when the offender will be subject to a licence. The appropriate custodial term must be at least 12 months and not exceed the maximum term of imprisonment permitted for the offence in the case of an adult. The extension period may be of such length as the court considers necessary for the purpose of protecting members of the public from serious harm occasioned by the commission of the offender of further specified offences up to a maximum of : five years in the case of a specified violent offence; and eight years in the case of a specified sexual offence. The aggregate of the custodial term and extension period may not exceed the maximum term of imprisonment permitted in the case of an adult. Detention for life or for public protection A court may pass a sentence of detention for public protection where: a person aged under 18 is convicted of a serious offence committed after [commencement]; and the court is of the opinion that there is a significant risk to members of the public of serious harm occasioned by the commission by him/her of further specified offence. Where the offence is punishable in the case of an adult with life imprisonment, and the court considers that the seriousness of the offence, or of the offence and one or more offences associated with it, is such as to justify the imposition of a sentence of detention for life, then the court must impose a sentence of detention for life. In other cases, if the court considers that an extended sentence would not be adequate for the purpose of protecting the public from serious harm occasioned by the commission by the offender of further specific offences, the court must impose a sentence of detention for public protection. This is a sentence of detention for an indeterminate period. The Youth Justice System Good Defence Practice Volume 2 Page 21

23 Specified offence A specified offence is defined as a violent or sexual offence listed in Schedule 15 CJA Serious offence A serious offence is defined as a specified offence which is punishable in the case of an adult with a maximum penalty of 10 years or more. The assessment of dangerousness In assessing whether there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further such offences, the court: must take into account all such information as is available to it about the nature and circumstances of the offence; may take into account any information which is before it about any pattern of behaviour of which the offence forms part; and may take into account any information about the offender which is before it. The Youth Justice System Good Defence Practice Volume 2 Page 22

24 Custodial regime R (Howard League for Penal Reform) v Secretary of State for the Home Department [2002] EWHC 2497 (Admin). Human rights: 1. Articles 3 and 8 of the European Convention on Human Rights afforded protection to juvenile prisoners from actions by members of the Prison Service which constitute inhuman and degrading treatment or punishment or which impact adversely and disproportionately on the inmate s physical or psychological integrity; 2. Articles 3 and 8 of the European Convention, read in the light of articles 3 and 37 of the UN Convention and article 24 of the European Charter, impose positive obligations to take reasonable and appropriate measures designed to ensure that: (i) children in young offender institutions are treated, both by members of the Prison Service and by fellow inmates, with humanity, with respect for their inherent dignity and personal integrity as human beings, and not in such a way as to humiliate (ii) or debase them. children in young offender institutions are not subjected to torture or to inhuman or degrading treatment or punishment by fellow inmates or to other behaviour by fellow inmates which impacts adversely and disproportionately on their physical or psychological integrity. 3. Such measure must strike a fair balance between the competing interests of the particular child and the general interests of the community as a whole (including the other inmates) but always having regard to: (i) (ii) (iii) first, to the principle that the best interests of the child are at all times a primary consideration; secondly, to the inherent vulnerability of children in a young offender institution; and thirdly, to the need for the Prison Service to take deterrent steps to prevent, and to take effective deterrent steps to prevent, and to provide children in young offender institutions with effective protection from, ill-treatment (whether at the hands of Prison Service staff or of other inmates) of which the Prison Service has or ought to have knowledge. 4. Where the Prison Service fails to meet its human rights obligations, the child may apply to the High Court for relief under sections 7 and 8 of the Human Rights Act In the case of a child, such an applicant should be made to the Family Division. The Youth Justice System Good Defence Practice Volume 2 Page 23

25 Application of the Children Act 1989: 1. The Children Act 1989 does not confer of impose any functions, powers, duties, responsibilities or obligations on either the Prison Service (or any of its staff) or the Home Secretary; but 2. The duties a local authority would otherwise owe to a child under section 17 (child in need) or section 47 (child protection investigation) of the Act do not cease to be owed merely because the child is currently detained in a young offender institution; however 3. A local authority s functions, powers duties and responsibilities under the Act, and specifically under sections 17 and 47, take effect and operate subject to the necessary requirements of imprisonment. The Youth Justice System Good Defence Practice Volume 2 Page 24

26 Anti-Social Behaviour Orders Crime and Disorder Act 1998 sections 1, 1A, 1AA, 1AB, 1C, 1D, 1E and 4. Magistrates Courts (Anti-Social Behaviour Order) Rules 2002, SI 2002/2784. Home Office, A Guide to Anti-Social Behaviour Orders and Acceptable Behaviour Contracts (November 2002). Civil order (s1) In force since 1 April A relevant authority may apply for an ASBO against any person aged 10 or over, if it appears to the authority: (a) that the person acted, since the commencement date, in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm and distress to one or more persons not of the same household as himself/herself; and (b) that such an order is necessary to protect persons from further antisocial acts by him/her. Relevant authority defined as any of the following: the council for a local government area; in relation to England, a county council; the chief constable of police of any police force maintained for a police area; the chief constable of the British Transport Police; any person registered under section 1 of the Housing Act 1996 as a social landlord who provides or manages any houses or hostel in a local government area; and a housing action trust established by order in pursuance of section 62 of the Housing Act Statutory duty to consult Before making an application for a civil order: the council for a local government area shall consult the chief officer of police of the police force for the police area within which that local government area lies; a chief officer of police shall consult the council for the local government area in which the person in relation to whom the application is to be made resides or appears to reside; any other relevant authority shall consult both the council for the local government area in which the person in relation to whom the application is to be made resides or appears to reside, and the chief The Youth Justice System Good Defence Practice Volume 2 Page 25

27 the chief officer of police of the police force for the police area within which that local government area lies. Assessment of needs of youth defendant Home Office guidance (pages 40 41): 1. When applying for ASBO against a person aged 10 to 17, an assessment of should be made of their circumstances and needs to ensure that appropriate services are provided fro the young person concerned and for the court to have the necessary information about him/her. 2. It is vital that any assessment made does not cause any delay to the application for an order. The lead agency should therefore liase closely with the local social services department or youth offending team from the start of the process so that where a new assessment is required it can begin quickly. 3. Councils with social services responsibilities have a duty, arising from section 17 of the Children Act 1989, to safeguard and promote the welfare of children within their areas who may be in need. The assessment is expected to be carried out in accordance with the Framework for the Assessment of Children in Need and their Families. This guidance sets out the content and timescales of the initial assessment (seven working days) and the core assessment (35 working days). A core assessment is required when an initial assessment has determined that the child is in need. The assessment will cover the child s needs, the capacities of his/her parents and wider family, and environmental factors. This enables councils to determine whether the child is a child in need and what services may be necessary in order to address the assessed need. The assessment of the child s needs should run in parallel with evidence gathering and the application process. 4. Statutory agencies, such as social services, the local education authority or the health authority have as statutory obligation to provide services to the under 18s. They should do so irrespective of whether an ASBO application is to be made and the timing of the application. The ASBO application does not prevent such support and can proceed in parallel, or indeed prior to, that support. The Youth Justice System Good Defence Practice Volume 2 Page 26

28 Application Application is by way of complaint to the adult magistrates court in its civil jurisdiction. A complaint must be made within six months from the time when the antisocial behaviour arose: Magistrates Courts Act 1980 s127. Questions for the court 1. Has the defendant acted in an anti-social manner? 2. Is an order necessary to protect persons from further anti-social acts by him/her? Proceedings are civil, not criminal, both a matter of domestic law and for the purposes of article 6 of the European Convention on Human Rights, their purpose being preventative, accordingly hearsay evidence is admissible. Magistrates must however apply to question 1 the criminal burden of proof, though question 2 does not involve a standard of proof but is an exercise of judgement or evaluation: R (McCann)- v- Crown Court at Manchester [2002] UKHL 39, [2002] 4 All ER; [2002] 3 WLR 1313 Evidence of a police officer of complaints made to him about the behaviour of the defendant is admissible in accordance with the Civil Evidence Act The fact that there is no possibility of cross-examination does not automatically mean that the trial is not a fair one under article 6. The court will have to consider what weight to give to the evidence in the light of the criticisms which can be made of hearsay evidence: R -v -Marylebone Magistrates Court ex parte C [2001] EWHC Admin Necessity of order consider whether: has an Acceptable Behaviour Contract (ABC) been tried? has the defendant been assessed as a child in need? have appropriate services/support been offered to the defendant and his/her family? The best interests of the young defendant are a primary consideration when determining whether to make an ASBO: R (Kenny and M)- v- Leeds Magistrates Court [2003] EWHC 2963 (Admin). Length of order An ASBO shall have effect for a period (not less than two years) specified in the order or until further order. Consider whether indefinite orders are appropriate for children and young persons. The Youth Justice System Good Defence Practice Volume 2 Page 27

29 Local authority applying for order against child in its care R (M) -v -Sheffield Magistrates Court [2004] EWHC 1830 (Admin). Where a local authority applies for an ASBO against a child over whom it holds a full care order and therefore has parental responsibility there is an obvious risk of a conflict of interest. The following legal issues arise: 1. A decision to apply for an ASBO is a decision within the meaning of section 22(4) of the Children Act 1989 which requires the authority to ascertain the wishes and feelings of the child and any person who is not a parent but who has parental responsibility for him/her and any other person whose wishes and feelings the authority consider to be relevant. This duty can be discharged by officers who are discharging care duties for the child in question, taking the necessary steps and reporting in full to the authority. 2. The material should be prepared and presented not as though it is a report for the ASBO panel, but as a report for the authority on behalf of the child. The ASBO panel should consider the material before it proceeds to making an application to court. This is because the considerations to which section 22(4) will give rise are likely to be relevant to the question whether it is necessary to apply for an ASBO. 3. If, having seen the full report, the lead section of the authority decides to apply for an ASBO, that decision must be communicated to all concerned. The social worker responsible for the child should not participate in the decision to apply for an ASBO. 4. The social services/workers for the authority should be available to assist and be witnesses at court, if requested, as witnesses for the child in question. No court should (save where exceptional circumstances prevail) make an order against a child in care without someone from the social services who can speak to the issue. 5. Where social services wish to support an ASBO application, after detailed consideration with the child and relevant persons, different considerations may apply. No specific guidance was given as to such an eventuality. The Youth Justice System Good Defence Practice Volume 2 Page 28

30 Interim order (section 1D) In force since 2 December Pending the determination of the main application for an ASBO, the court may make an interim order if it considers that it is just to do so. An interim order: shall be for a fixed period; may be varied, renewed or discharged; shall, if it has not previously ceased to have effect, cease to have effect on the determination of the main application. An application for an interim order may be made without notice with the leave of the justices clerk who shall only grant leave if s/he is satisfied that it is necessary for the application to be made without notice being given to the defendant. An interim order made without notice only takes effect when served upon the defendant; must be served personally on the defendant; shall cease to have effect, if not served upon the defendant within seven days. An interim ASBO made without notice in relation to a youth defendant may be appropriate, but the court must take account of the young defendant s best interests as a primary consideration. His/her best interests are not the primary consideration the interests of the wider community is another primary consideration: R (Kenny and M)- v -Leeds Magistrates Court [2003] EWHC 2963 (Admin) and R (A)- v -Leeds Magistrates Court [2004] EWHC 554 (Admin). Order on conviction for a criminal offence (section 1C) In force since 2 December On conviction a court may make an ASBO against the offender if it considers: that the offender has acted, at any time since the commencement date, in an anti-social manner, that is to say in a manner that caused or was likely to cause harassment, alarm distress to one or more persons not of the same household as himself/herself; and that an order is necessary to protect persons in an place in England and Wales from further anti-social acts by him/her. The Youth Justice System Good Defence Practice Volume 2 Page 29