JUSTICES CLERKS SOCIETY SENIOR DISTRICT JUDGE (CHIEF MAGISTRATE)

Transcription

1 Senior District Judge (Chief Magistrate) JUSTICES CLERKS SOCIETY SENIOR DISTRICT JUDGE (CHIEF MAGISTRATE) Youth Court Jurisdiction The Modern Approach July 2015 This is the joint advice of the Justices' Clerks Society and the Senior District Judge (Chief Magistrate). It is guidance only and has no legal status.

2 Youth Court Jurisdiction The Modern Approach Page 3 Page 5 Page 7 Page 9 Page 10 Page 11 Page 12 Page 13 Page 14 Page 15 Page 16 Page 17 Page 18 Page 20 Page 21 Introduction The New Power to Commit for Sentence Case Law based on the new approach Causing Death by Driving Procedural Guide Youth Charged with offence capable of being a grave crime (which is not a specified violent or sexual offence) Youth Charged with specified violent or sexual offence which is not a grave crime (schedule 15 Criminal Justice Act 2003) Youth Charged with offence capable of being a grave crime which is also a specified violent or sexual offence (schedule 15 Criminal Justice Act 2003) Youth Jointly Charged with Adult: Summary Offences (e.g. Common Assault) Youth Jointly Charged with Adult: Either way offences which are not grave crimes or specified dangerous offences (e.g. non-dwelling burglary) Youth Jointly Charged with Adult: Indictable only offence capable of being a grave crime which is also a specified violent or sexual offence under schedule 15 Criminal Justice Act 2003 (e.g. Robbery) Youth Jointly Charged with Adult: Either way offence capable of being a grave crime but not a specified violent or sexual offence (e.g. dwelling burglary) Youth Jointly Charged with Adult: Either way offence which is specified under Schedule 15 Criminal Justice Act 2003, but which is not a grave crime (e.g. Section 20 Offences Against the Person Act 1861) Abbreviations Quick Links and Useful Cases 2

3 Introduction In the Winter of 2014, a small working group was convened to consider issues of jurisdiction in the youth court. Members of that working group were: Howard Riddle, Senior District Judge (Chief Magistrate); Simon Cooper, District Judge (Magistrates Courts); John Bache, Magistrates Association; Fred Ponsonby, Magistrate; Richard Bennett, Justices Clerks Society; Frances Searle, Justices Clerks Society; Bill Kerslake, Youth Justice Board; Nadia Manzoor, Researcher to the Senior District Judge. As readers will be aware, in recent years considerable concern has been expressed over the number of cases sent from the youth court to the Crown court for trial. Further, many of the appellate cases have criticised the approach of the youth court for being too ready to send a case for trial to the Crown court, despite the guidance in case law and from the Sentencing Guidelines Council (as was). 1 It is perhaps understandable that youth courts have been cautious; previously the legislation had been restrictive and finite in its approach to grave crime jurisdictional decisions. Where a decision was made to accept jurisdiction of a case for trial, the youth court had no power to later commit for sentence. In recent years, legislation was amended to allow a youth court to commit a grave crime for sentence but only where the accused indicated a guilty plea (as opposed to being found guilty after a trial). Most recently, in April 2015, the Criminal Justice and Courts Act 2015 made an amendment to section 3B of the Powers of Criminal Courts (Sentencing) Act 2000 which now allows a youth court to commit a grave crime for sentence following a conviction. Committal may therefore now take place following a guilty plea or following a conviction after trial. Accordingly when deciding whether a case ought to be sentenced at the Crown court, the youth court will now be able to make a much more realistic decision based on fuller information. It may be able to make the decision after a trial and potentially after a Pre- Sentence report has been prepared. 1 Overarching Principles Sentencing Youths, Definitive Guideline, November

4 We will write in more detail on the following pages about the procedural implications of this new approach. However, we stress at this point that the April 2015 amendment is a major one, and was brought in with the very purpose of allowing youth courts to accept jurisdiction of more trials than they do now. We do not therefore see this as a minor tweak to legislation. Rather we urge readers to regard it, as we do, as a most significant change to the way in which youth courts approach questions of jurisdiction. I am grateful to the group for their insight and in particular to Richard Bennett for preparing this advice. In this ever complex area of the law, we hope this guidance is of use to you. Howard Riddle Senior District Judge (Chief Magistrate) July 2015 Signed on behalf of all members of the 2014 Youth Court Jurisdiction Working Group 4

5 The New Power to Commit for Sentence As outlined in our introductory remarks, there is now a new power to commit for sentence following a conviction in the youth court. Section 3B Powers of Criminal Courts (Sentencing) Act 2000 has been amended from April 13 th Subsection (1) of the section now reads: (1) This section applies where on the summary trial of an offence mentioned in section 91(1) of this Act a person aged under 18 is convicted of the offence. The section goes on to allow the youth court to commit a youth for sentence to the Crown court if it is of the opinion that the Crown Court should have power to deal with the offender. The amendment is not retrospective; it applies only if the person convicted of the offence first appeared in respect of the offence after the date of commencement (13 th April 2015). 3 This is an important amendment. It allows a youth court to accept jurisdiction of a case for trial, and in an appropriate case, to later commit for sentence. However, we need to stress that section 51A Crime and Disorder Act 1998 is of course still in force. That section requires the youth court to send a grave crime case for trial where the court considers that if he is found guilty of the offence it ought to be possible to sentence him in pursuance of subsection (3) of that section (i.e. detention in excess of the powers of the youth court). The Sentencing Guidelines Council provided further assistance with this test by referring to the words, realistic possibility 4 (making reference to leading case law 5 ). The test that came to be used was therefore whether there was a realistic possibility that a sentence imposed by the Crown court would be appropriate. It is worth noting of course that the Sentencing Guidelines Council created two categories for the youth court to consider: Young Persons aged 10 or 11 (or aged but not persistent offenders) This group should be committed to the Crown Court (for trial) only where charged with an offence of such gravity that, despite the normal prohibition on a custodial sentence for a person of that age, a sentence exceeding two years is a realistic possibility. 2 Criminal Justice and Courts Act 2015, section 53(1), SI 2015/778, art 3, Sch 1, para Criminal Justice and Courts Act 2015, section 53 (3) 4 Overarching Principles Sentencing Youths, Definitive Guideline, November 2009, at page 27 5 For example, R (H, A, and O) v Southampton Youth Court 2004 EWHC

6 Young persons (aged 12-17) for which a detention and training order could be imposed This group should be committed to the Crown Court (for trial) under this provision only where charged with an offence of such gravity that a sentence of substantially beyond the 2 year maximum for a detention and training order is a realistic possibility The first group of young persons described above may not receive a custodial sentence in the youth court. Therefore there is a public interest in sending the case to the Crown court in any case where there is a realistic possibility of a sentence in excess of 2 years being imposed. The second group of young persons described above may receive a detention and training order of up to 2 years in the youth court. Given that the youth court is generally the more appropriate venue to hear a trial concerning a youth (for a variety of reasons) a sentence of substantially beyond 2 years is required in order to justify sending proceedings to the Crown court. Given the changes to the legislation in April 2015, it may be that the words realistic possibility in the Guidelines require a different emphasis. The venue decision is no longer final. The test in the legislation is clear: Does the court consider that it ought to be possible to sentence the youth to a sentence in excess of the powers of the youth court? (bearing in mind the 2 tests outlined by the Sentencing Guidelines Council above). This provision is mandatory and must not be ignored in favour of later committing for sentence where appropriate. The youth court must send the case for trial at the Crown court where the test in Section 51A is met. However, we believe that section 51A Crime and Disorder Act 1998, and the newly substituted section 3B Powers of Criminal Courts (Sentencing) Act 2000 can work well in parallel with each other. By way of explanation, at the point the youth court is considering making a determination on venue for trial, this is typically the first hearing of the case. The youth court may not be in a position to decide (in many cases) that it ought to be possible to sentence the youth to custody in excess of 2 years at this early hearing, particularly bearing in mind the following factors: The court will likely not have any recent pre-sentence reports; youth courts must have written reports if considering custody The court may not have victim personal statements. The court may not have a clear idea of whether any sentence ought to focus on punishment or protection of the public or on rehabilitation The court will need to consider in due course the primary aim of the youth justice system (to prevent offending a principal which requires an appropriate sentence to be passed only once full information about the circumstances of the offender is available to the court). The court will not yet have considered the welfare of the youth in relation to sentence 6

7 Case Law based on the new approach There has been a recent case which considers the new provision, R (on the application of the DPP) v South Tyneside Youth Court & Anor 2015 EWHC 1455, 20 th May The facts of this case were that a youth (aged 14 to 15 at the time of one incident and 15 at the time of the others) was charged with 3 offences of oral rape of a boy under the age of 13 years, and one charge of inciting a boy under 13 to engage in sexual activity. The complainant was 6 years old at the time of one incident and 7 thereafter. The accused (B) had allegedly put his penis into the complainant (L s) mouth, then removed L s underwear and put L s penis into his mouth. The bedroom door had been wedged shut. During his ABE interview, L disclosed that B had put his penis into L s mouth on two earlier occasions. They were cousins, and B had allegedly threatened L that they wouldn t be cousins anymore if L told anyone. B denied the allegations. The case was before the youth court on 13 th March 2015, and the court accepted jurisdiction believing (in error) that there was a general power to commit for sentence following a trial. That power now of course exists. The judgment delivered by The President of the Queen s Bench Division, Sir Brian Leveson, is essential reading for anyone practicing in the youth court. In this case, the Court made a number of important remarks. It highlighted that courts must not take a mechanistic approach to sentencing. It is critical to ensure that full account is taken of all the circumstances of the case. The impact on the victim must be considered as well as the maturity and understanding of the accused. Whilst the decision of the youth court to retain jurisdiction in this case was based on a misunderstanding (that section 3B, as now amended, was in force) the High Court held that: Had this provision been in force when the District Judge made his decision, it would have been unassailable. These were very serious allegations, and starting points of 8 or 10 years (for an adult) were referred to in the case. However, the judgment states: Without considerably more information, it is quite impossible to determine whether B requires condign punishment, education or psychological therapy in most cases whether there is such a "real prospect" will generally be apparent only when the court has determined the full circumstances of the offence and has a far greater understanding of the position of the offender. The approach outlined above is more akin to the approach used in respect of dangerous offenders, where it is generally preferable for the decision whether to send to the Crown court to be made after conviction. As stated by Leveson LJ: Since the youth court now has the option of committing a defendant for sentence after conviction if the court considers that the Crown Court should have the power to impose a 7

8 sentence of detention pursuant to s. 91(3) of the 2000 Act, it will generally be at that point when the assessment can and should be made. In that way, the observations in Southampton Youth Court (at para. 33) that Crown Court trial for a youth "should be reserved for the most serious cases" remain entirely apposite. It is worth observing that this approach is entirely consistent with the intended purpose of the amendment as explained by the Parliamentary Under-Secretary of State for Justice during the Report and Third Reading of the Bill: see Hansard, Vol 580, Col 464. It has been appreciated for a long time that the Crown court is reserved for the most serious cases, recognising the greater formality of the proceedings and the greatly increased number of people involved. The Sentencing Guidelines Council informed us in 2009 that it will be rare to commit a grave crime for trial as it is the general policy of Parliament that those under 18 should be tried in the youth court wherever possible. Courts were guided that offenders under 15 will rarely attract a period of detention in excess of 2 years from the Crown court, and those under 12 even more rarely. Given that it is now possible to accept jurisdiction for trial and later commit for sentence it will be even more rare that a case should be sent for trial to the Crown court. In the South Tyneside case the High Court expressed the view that accepting jurisdiction of such a case (with a potential starting point of 8-10 years for an adult), in the knowledge that committal for sentence would later be available, would be unassailable. In the event, the youth court erred (as section 3B was not yet in force) and the case was remitted back to the youth court for further consideration. However, the case really highlights the point that the venue decision is often best made when more information is known about the offence and the offender. The court will be in a better position to judge the appropriate sentence and whether it needs to focus on punishment or rehabilitation. That said, there will of course be cases where it is obvious that the case is so grave that it needs to be sent to the Crown court for trial at the outset. If jurisdiction is accepted, there is no concern regarding legitimate expectations of the youth court imposing the sentence. Parliament has decreed that it is lawful for the youth court to accept jurisdiction of the trial then commit for sentence. However, youth courts should announce that committal for sentence remains a possibility. We suggest the following wording: Whilst the court has decided your case can be tried in the youth court, if you are later found guilty of the offence(s) the court will review the position at that stage and may decide to commit you for sentence to the Crown court. As stated above, we regard the change to the legislation as significant, and would expect to see more cases being retained in the youth court for trial. Previously, it was rare to need to send a case for trial to the Crown Court. Now, it will be even more rare. 8

9 Causing Death by Driving Section 51A of the Crime and Disorder Act 1998 requires all cases of homicide to be sent to the Crown court for trial, regardless of likely sentence. The question then arises: are cases where death is caused by driving to be considered homicide in this context? The Youth Court Bench Book 2013 states: Homicide is not defined in statute but would ordinarily include murder and manslaughter. This does not include the new road traffic offences of causing death by dangerous driving or by careless driving under the influence of alcohol or drugs. However, these offences carry a maximum of 14 years imprisonment and so are capable of being grave crimes. 6 We agree with that interpretation. Some driving offences result in death which are triable either way in the adult Magistrates Court. 7 It cannot have been the intention of Parliament that the adult magistrates court (with a maximum sentence available to it of 6 months custody) could deal with such offences, but the youth court (with a maximum sentence available to it of 2 years detention) is not able to due to the offence being classified as homicide. Similarly, other offences including death by dangerous driving 8 and death by careless driving whilst under the influence of drink or drugs 9 now have a maximum penalty of up to 14 years in custody. This is an important threshold in the youth court as it means such offences may be considered grave crimes for the purposes of section 91 Powers of Criminal Courts (Sentencing) Act 2000 where appropriate. For the above reasons, we do not believe such offences are to be treated as homicide for the purposes of an automatic sending for trial under section 51A (3) (a) and (12) (a) Crime and Disorder Act A decision on jurisdiction must be made where appropriate. 6 Judicial College, 2013, at page 28 7 For example, causing death by careless driving (section 2B Road Traffic Act 1988) and causing death by driving: unlicensed, disqualified or uninsured drivers (section 3ZB Road Traffic Act 1988). 8 Section 1, Road Traffic Act Section 3A, Road Traffic Act

10 Procedural Guide It is essential to understand the relationship between the various jurisdictional sections. These are: Magistrates Courts Act 1980, section 24A Crime and Disorder Act 1998, sections 51 and 51A Powers of Criminal Courts (Sentencing) Act 2000, sections 3B and 3C, and 91 Criminal Justice Act 2003, Schedule 15 Section 51A (12) CDA 1998 lists certain offences where the court must send a youth for trial. 10 However for cases where a decision on jurisdiction needs to be made, we attempt in the following pages to provide a procedural guide, both for the youth court and for the adult magistrates court where the youth appears with an adult. There is of course no substitute for scrutinising each section independently and together; and we cannot provide a guide for every scenario. However, we attempt to provide guidance on the more common scenarios. Given the complex relationship between the sections, we appreciate that there may be other methods available to a court which is working its way through the legislation. 10 For example, homicide, certain offences under the Firearms Act 1968 and the Violent Crime Reduction Act

11 Youth Charged with offence capable of being a grave crime (which is not a specified violent or sexual offence) 1. The Youth is asked to indicate a plea Note: Section 24A (1) (b) MCA 1980 requires this as the offence is listed in section 91 PCC(S)A 2000 and therefore could be sent for trial (section 51A (2) and (3) (b) CDA If a guilty plea is indicated, the court will consider the appropriate venue for sentence taking into account any offence specific Sentencing Guidelines or case law, alongside the general principles in the Overarching Principles document. a. If the powers of the youth court are sufficient, the youth will be sentenced in the youth court. b. If the powers of the youth court are insufficient, the youth may be committed to the Crown court for sentence (Section 3B PCC(S)A 2000) 3. If a not guilty plea is indicated or no indication given, the court shall proceed to make the relevant determination in relation to venue. a. If jurisdiction is refused, the court shall send the case to the Crown court for trial. b. If jurisdiction is accepted, the youth court shall hear the trial (it will wish to warn the youth that s/he may still later be committed for sentence). In the event of a finding of guilt in the youth court, the court may either sentence the youth or if it considers the Crown court ought to sentence the youth (bearing in mind case law and guidelines) the court may commit for sentence (section 3B PCC(S)A 2000). 11

12 Youth Charged with specified violent or sexual offence which is not a grave crime (schedule 15 Criminal Justice Act 2003) 1. The youth court should not take a plea. Note: Section 24A MCA 1980 requires an indication of plea only where the case is referred to in section 51A (3) (b), (4) or (5) CDA Those sections relate to cases which are grave crimes (and related offences). Specified dangerous offences are covered in section 51A (3) (d) CDA The court will hear submissions and decide whether it appears to the court that (if found guilty) the criteria for the imposition of an extended sentence under the dangerousness provisions is met. Note: i.e. a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences and an appropriate custodial term of at least 4 years. The court will need to consider the Sentencing Guidelines Council guidance that it is generally preferable to make this decision after conviction. 3. If jurisdiction is refused, the case shall be sent to the Crown court (section 51A (2) and (3) (d) CDA 1998). 4. If jurisdiction is accepted, the youth court shall hear the trial. In the event of a finding of guilt in the youth court, the court may either sentence the youth or if it appears that the criteria for the imposition of an extended sentence under the dangerousness provisions is met, it must commit for sentence to the Crown court (section 3C PCC(S)A 2000). 12

13 Youth Charged with offence capable of being a grave crime which is also a specified violent or sexual offence (schedule 15 Criminal Justice Act 2003) Note: We are aware that the procedural guide described below may be different to advice you have previously received. We take the view that there are three categories of offence in this area of the law: a) those which are potentially grave crimes only, b) those which are specified offences but not grave crimes, c) those which are both. The Sentencing Guidelines Council in 2009 stated that generally it is preferable for the decision whether to [send] for trial under the [dangerous] provisions to be made after conviction. Therefore, where the offence is both a grave crime and a specified dangerous offence, rather than deciding prior to plea whether to send a case for trial in the latter category, we consider that the court should generally go through the plea before venue procedure first. Our reasoning for this is that section 51A CDA 1998 is subject to section 24A MCA Section 24A requires plea before venue to be undertaken in any case where a grave crime jurisdiction decision needs to be made at that stage of the proceedings. Such a decision does generally need to be made at that stage in the proceedings, as the decision under the dangerousness provisions should usually be made after conviction. The Youth is asked to indicate a plea 1. If a guilty plea is indicated, the court will consider the appropriate venue for sentence taking into account any offence specific Sentencing Guidelines or case law, alongside the general principles in the Overarching Principles document. a. If the powers of the youth court are sufficient, the youth will be sentenced in the youth court. b. If the powers of the youth court are insufficient, the youth may be committed to the Crown court for sentence under the grave crime provisions (section 3B PCC(S)A 2000) or the dangerousness provisions (section 3C). 2. If a not guilty plea is indicated or no indication given, the court shall proceed to make the relevant determination in relation to venue. a. If jurisdiction is refused, the court shall send the case to the Crown court for trial (either under the grave crime provisions or the dangerousness provisions as applicable, noting the guidance cited above regarding the dangerousness provisions being employed prior to conviction) b. If jurisdiction is accepted, the youth court shall hear the trial (it will wish to warn the youth that s/he may still later be committed for sentence). In the event of a finding of guilt in the youth court, the court may either sentence the youth or if it considers the Crown court ought to sentence (bearing in mind case law and guidelines) the court may commit for sentence as a grave crime (section 3B PCC(S)A 2000) or under the dangerousness provisions (section 3C PCC(S)A 2000). 13

14 Youth Jointly Charged with Adult Summary Offences (e.g. Common Assault) 1. In this scenario the adult leads so a plea is taken from the adult. 2. If the adult pleads guilty, then a plea is taken from the youth. a. If the youth pleads guilty, the youth will likely be remitted for sentence to the youth court (section 8 PCC(S) A 2000, unless one of the sentences in section 8 (7) or (8) is appropriate to impose there and then). b. If the youth pleads not guilty, the youth will be remitted for trial to the youth court (section 29 MCA 1980). 3. If the adult pleads not guilty then a plea is taken from the youth. a. If the youth also pleads not guilty, a joint trial will be heard in the adult magistrates court b. If the youth pleads guilty, the youth will likely be remitted for sentence to the youth court (section 8 PCC(S) A 2000, unless one of the sentences in section 8 (7) or (8) is appropriate to impose there and then) In some circumstances, the court may be able to reconstitute itself as a youth court on the day in order to impose sentence. 14

15 Youth Jointly Charged with Adult Either way offences which are not grave crimes or specified dangerous offences (e.g. non-dwelling burglary) 1. The adult leads in this scenario so an indication of plea is taken from the adult first. 2. If that indication of plea is guilty, the adult will be sentenced in the adult magistrates court or committed for sentence to the Crown court (section 3 PCC(S)A a. The court should then take a plea from the youth who will then be remitted to the youth court for trial (section 29 MCA 1980) or sentence (section 8 PCC(S) A 2000, unless one of the sentences in section 8 (7) or (8) is appropriate to impose there and then). 3. If the adult indicates a not guilty plea or gives no indication, the court considers allocation, and the court declines jurisdiction (or the adult accused elects trial at the Crown court) the court will send the adult for trial to the Crown court. a. A plea must then be taken from the youth Note: The sending section in this scenario (Section 51 (7) and (8) CDA 1998) is subject to section 24A MCA 1980 (the requirement to go through plea before venue). b. If the youth enters a guilty plea, the court will likely remit the case to the youth court for sentence (there being no power to commit to the Crown court for sentence in this scenario). c. If the youth enters a not guilty plea, the court will consider the interests of justice of having a joint trial (section 51(7) CDA 1998) bearing in mind the guidance in the Overarching Principles document and the Sentencing Council s guidance on allocation. 4. If the adult indicates a not guilty plea or gives no indication, the court considers allocation and summary trial is directed: a. A plea must then be taken from the youth b. If that plea is guilty, the court will likely remit the case to the youth court for sentence c. If that plea is not guilty, a joint trial will likely be heard in the adult magistrates court. If later found guilty, the case may be remitted to the youth court for sentence (section 8 PCC(S)A 2000). 15

16 Youth Jointly Charged with Adult Indictable only offence capable of being a grave crime which is also a specified violent or sexual offence under schedule 15 Criminal Justice Act 2003 (e.g. Robbery) 1. The adult will be sent for trial, section 51 (1) and (2) CDA Plea before venue should generally be carried out for the youth at this stage (as this offence is potentially a grave crime 12 ); Section 24A (1) (b) MCA 1980, and Section 51A (3) (b) CDA a. If the youth indicates a guilty plea s/he will be remitted for sentence to the youth court or may be committed for sentence under section 3B PCC(S)A 2000 (with a view to long term detention being imposed under the grave crime provisions, section 91 PCC(S)A 2000) or section 3C PCC(S)A 2000 if the dangerousness criteria are met. b. If the youth indicates a not guilty plea or gives no indication, the court will make a venue determination. i. If the court takes the view that a sentence under section 91 PCC(S)A 2000 is a realistic possibility (bearing in mind what we have said before), then the youth must be sent for trial; section 51A (2) and (3) (b) CDA ii. If it appears to the court that the criteria for an extended sentence under the dangerous provisions is appropriate, then the youth must be sent for trial 13 ; section 51A (2) and (3) (d). iii. If a joint trial is in the interests of justice, the youth shall be sent to the Crown court for trial (section 51 (7) CDA 1998). iv. If the court takes the view that summary trial is more appropriate, the case will be remitted to the youth court for trial. In the event of a finding of guilt, the court still retains the power to commit for sentence under the dangerousness provisions (Section 3C PCC(S)A 2000) or the grave crime provisions (section 3B PCC(S)A 2000). Note: the above decisions take place in the adult magistrates court. 12 See notes on page 13 of this document as to why it is generally preferable to undertake the plea before venue procedure at this stage of the proceedings. 13 Note the Sentencing Council guidance that it is generally preferable to make a decision under the dangerousness provisions after conviction. 16

17 Youth Jointly Charged with Adult Either way offence capable of being a grave crime but not a specified violent or sexual offence (e.g. dwelling burglary) 1. The adult is asked to indicate a plea. If the adult indicates a guilty plea, s/he will be sentenced or committed for sentence. An indication of plea then needs to be taken from the youth. i. If this is guilty the youth will be remitted for sentence to the youth court or committed for sentence to the Crown court. ii. If the indication is not guilty, the youth will be remitted for trial to the youth court, or sent for trial to the Crown court. 2. If the adult indicates a not guilty plea or gives no indication, the court must ask the youth to indicate a plea (prior to any allocation decision for the adult see below). a. If the youth pleads guilty, s/he will be remitted for sentence to the youth court or committed for sentence (section 3B PCC(S)A 2000) b. If the youth pleads not guilty the court must consider the grave crime powers and if insufficient send the youth for trial to the Crown court (section 51A (3) (b) CDA 1998). In the latter case, the adult must then follow the youth for trial at the Crown Court (section 51A (6) CDA 1998) hence the reason for delaying the allocation decision for the adult. c. If the youth pleads not guilty and jurisdiction is accepted for the youth, then the court moves on to deal with the allocation decision for the adult. i. If the adult is sent to the Crown court for trial, the interests of justice test must be considered for the youth (section 51 (7) CDA 1998), bearing in mind the guidance in the Overarching Principles document and the Sentencing Council s Allocation guideline. The youth will either be sent for trial with the adult (if a joint trial is in the interests of justice) or remitted for trial to the youth court if not. ii. If jurisdiction is accepted for the adult a joint trial in the adult magistrates court is likely to take place. In the event of the youth being found guilty, the court will likely remit the youth for sentence to the youth court or commit for sentence to the Crown court as a grave crime (section 3B PCC(S)A 2000). 17

18 Youth Jointly Charged with Adult Either way offence which is specified under Schedule 15 Criminal Justice Act 2003, but which is not a grave crime (e.g. Section 20 Offences Against the Person Act 1861) 1. In this scenario it may be appropriate for the youth to take the lead initially. No plea is taken from the youth as a decision needs to be made whether to send the youth for trial under the dangerousness provisions (section 51A (3) (d) CDA 1998). 2. If it appears to the court that the criteria for a sentence under section 226B CJA 2003 is met, then the youth must be sent for trial. In such circumstances, the adult must follow the youth and shall also be sent for trial (section 51A (6) CDA Note: the above is of course a very unlikely scenario, given the guidance on sending youths for trial under the dangerousness provisions. 3. If the court does not send the youth for trial under the dangerousness provisions, an indication of plea is taken from the adult. 4. If the adult indicates a not guilty plea or gives no indication, the court considers allocation, and the court declines jurisdiction (or the adult accused elects trial at the Crown court) the court will send the adult for trial to the Crown court. a. A plea must then be taken from the youth Note: The sending section in this scenario (Section 51 (7) and (8)) is subject to section 24A (the requirement to go through plea before venue). b. If the youth enters a guilty plea, the court will likely remit the case to the youth court for sentence (or could commit for sentence under section 3C PCC(S)A 2000). c. If the youth enters a not guilty plea, the court will consider the interests of justice of having a joint trial (section 51(7) CDA 1998) bearing in mind the guidance in the Overarching Principles document and the Sentencing Council s Allocation Guideline. 5. If the adult indicates a not guilty plea or gives no indication, the court considers allocation and summary trial is directed: a. A plea must then be taken from the youth. b. If that plea is guilty, the court will likely remit the case to the youth court for sentence (or could commit for sentence under section 3C PCC(S)A 2000) 18

19 c. If that plea is not guilty, a joint trial will likely be heard in the adult magistrates court. If later found guilty, the case may be remitted to the youth court for sentence (section 8 PCC(S)A 2000) or committed for sentence under section 3C PCC(S)A

20 List of Abbreviations CDA 1998 Crime and Disorder Act 1998 CJA 2003 Criminal Justice Act 2003 MCA 1980 Magistrates Courts Act 1980 PCC(S)A 2000 Powers of Criminal Courts (Sentencing) Act

21 Quick Links Allocation Guideline Carlile Enquiry 14 Overarching Principles Sentencing Youths, Sentencing Guidelines Council, 2009 Youth Court Bench Book 2013 Useful Cases R (on the application of the DPP) v South Tyneside Youth Court and B 2015 EWHC 1455 (Admin) 15 R (H, A, and O) v Southampton Youth Court 2004 EWHC R (on the application of T) v Bromley Youth Court 2014 EWHC 577 (Admin) 17 R (on the application of B) v Norfolk Youth Court & Crown Prosecution Service 2013 EWHC R (on the application of G) v Llanelli Magistrates Court 2006 EWHC Inquiry into the Operation and Effectiveness of the Youth Court, June Useful commentary and proposals in relation to the future of youth courts which we would urge all practitioners with an interest in this area to read. 15 Important 2015 case describing the implications of the amendment to section 3B PCC(S)A 2000 and the power to commit for sentence following a trial 16 Leading grave crime case at the time dealing with indecent assault and providing a useful commentary on the historical position to that date. 17 Robbery case, useful discussion of the sentencing guidelines as they apply to youths. 18 Robbery case (with weapon) year old charged with robbery of 78 year old woman. Again a useful discussion of the case law at the time. 21