Justices Clerk for West Yorkshire

Transcription

1 Justices Clerk for West Yorkshire Subject: LOCAL PROTCOL SEXUAL OFFENCES IN THE YOUTH COURT Date: Thursday, 18 March 2010 To: Copy: West Yorkshire & North Yorkshire Legal Advisers, Legal Team Managers & Deputy Justices Clerks, N & W Yorkshire Magistrates Court Managers & Listing Staff Crown Prosecution Service and Youth Offending Teams This protocol applies to the following offences,. provided they involve a youth or youths charged without an adult 1. They will all be called serious sexual offences. Rape Sexual Assault by penetration Sexual Assault Causing a person to engage in sexual activity involving penetration without consent Causing a child or person with a mental disorder to engage in sexual activity Sexual activity with a child or person with a mental disorder Sexual activity with a child family member Inciting a child family member to engage in sexual activity Kidnapping or false imprisonment with intent to commit a sexual offence Arranging a child sex offence or offence with a person with a mental disorder Paying for sexual services of a child involving penetration Paying for sexual services of a child under 13 Causing or inciting child prostitution or pornography Controlling a child prostitute or child involved in pornography Arranging or facilitating child prostitution or pornography It does not apply to any other sexual offence. Authorised District Judge The Senior Presiding Judge s Protocol ( see below) directs that serious sexual offences in the Youth Court should be dealt with by authorised District Judges. At present in West Yorkshire, only Judge Darnton, Judge Anderson and Judge Kitson are authorised. The full list for the North East Region is held by the Chief Magistrates Office. The authorised District Judge must try and sentence cases of penetrative activity, and must determine whether other offences can be released to other DJ (MCs)s or Youth Panel magistrates. 1 i.e. offences for which an offender can be detained under s. 91(1) Powers of Criminal Courts (Sentencing) Act 2000 (commonly called grave crimes after the previous legislation).

2 Case papers Except in relation to the grave crime / mode of trial decision, the authorised District Judge needs to review the case papers and they will need a case summary (MG5) and the criminal record. If there is no summary or criminal record on the court papers, the legal adviser must arrange for copies to be obtained from the prosecutor on the day. First Hearing If one of the authorised District Judges is sitting at the court house, the case should be listed before one of the authorised District Judges. If there is no authorised District Judge on the premises, the assigned Youth Court should deal with the case and determine grave crime / mode of trial. The case should NOT be adjourned to another day to go before an authorised District Judge for grave crime determination unless the mode of trial decision is deemed particularly complex / difficult. Mode of Trial / Grave Crime If the court directs trial in the Crown Court, the case should be adjourned for committal and not referred to an authorised District Judge. If the court does not direct the case to the Crown Court it should take a plea. Following Plea In view of the gravity of the offences, it is very important that cases are progressed without delay. Not guilty - rape and other penetrative offences These cases must be heard by an authorised District Judge. If the defendant pleads not guilty, the court should adjourn for a case management hearing before an authorised District Judge, who will case manage it and fix the trial date. The case management hearing should be within 14 days of the first hearing. The defendant must be present at the case management hearing. The listing office at Leeds should be contacted to establish an authorised District Judge s availability. It may be necessary to remand the case to Leeds for the case management hearing, and back to the local court for the trial. The cases should be transferred between courts pursuant to s.27a Magistrates Courts Act 1980 ( magistrates court includes youth court for the purposes of these provisions) At the case management hearing the authorised District Judge will determine where the trial should take place. Not guilty - non-penetrative offences If the defendant pleads not guilty, the court should fix a case management hearing. The case management hearing should be within 14 days of the first hearing date. The case management hearing is listed at the home court. The defendant must be present for any case management hearing. 2

3 In the adjournment, the case summary (MG5) and copy of the defendant s previous convictions should be sent to Leeds Listing Office Fax number for the attention of one of the authorised District Judges with the covering fax template at Annex A. They will consider the case papers and determine whether the trial should be heard by an authorised District Judge or released to another District Judge (MC) or the Youth Panel bench. The fax template will be completed by one of the authorised District Judges and arrangements will be made to have this faxed back to the home court. The completed fax will be referred to a Legal Team Manager / Deputy Justices Clerk at the home court with the court file. The determination will be recorded on the court file by a legal team manager or Deputy Justices Clerk and any necessary listing arrangements put in place and overseen. Guilty: rape or other penetrative offences Adjourn for a PSR to be sentenced before one of the authorised District Judges. Guilty : not penetrative offences Adjourn for a full PSR and follow procedure above for an authorised District Judge to determine whether the case should be sentenced by a authorised District Judge or released to another District Judge (MC) or a Youth Panel bench. If authorised DJ not available. If none of the designated district judges are available, the legal adviser should contact the Chief Magistrates Office to identify another DJ who can make the determination. Reference Shortcut to the protocol : Chief Magistrates Office: tel or GL-CMO.DDJDeployment@hmcourtsservice.gsi.gov.uk 3

4 Sexual Offences in the Youth Court A Protocol issued by the Senior Presiding Judge Introduction 1. This protocol sets out the procedure to be applied in the Youth Court in all cases involving allegations of sexual offences which are capable of being committed for trial at the Crown Court under the grave crime provisions. 2. This protocol applies to all cases involving such charges, irrespective of the gravity of the allegation, the age of the defendant and / or the antecedent history of the defendant This protocol does not alter the test 3 that the Youth Court must apply when determining whether a case is a grave crime. 4. This Protocol has been written in consultation with the Senior District Judge, the Magistrates Association, the National Bench Chairmen s Forum, the Justices Clerks Society, HMCS and the CPS. Commencement and amendment 5. The protocol will take effect forthwith and may be amended as appropriate by the Senior Presiding Judge. 6. This Protocol supersedes the Protocol on Rape Cases, issued in November Background 7. Historically, the position was that the Youth Court should never accept jurisdiction in a rape case 4. More recent developments in case law 5 and the wider definition of rape under the Sexual Offences Act 2003 now mean that certain rape cases may not fall within the grave crime exception and can appropriately be tried in the Youth Court. 2 So, for example, every allegation of sexual touching, under s3 of the Sexual Offences Act 2003, is covered by this protocol. 3 Set out in the Sentencing Guidelines Council s definitive guideline, entitled Overarching Principles Sentencing Youths Published by the Sentencing Guidelines Council in November 2009; available from 4 R v. Billam (1986) 1 All ER For example, R (on the application of B & others) v The Richmond on Thames Youth Court (2006) EWHC 95 and Stones Justices Manual 4

5 8. In light of those developments the Rape Protocol was issued in November That protocol provided that such cases should be heard by a Circuit Judge, authorised to try serious sexual offences, sitting as a District Judge (Magistrates Court). No explicit provision was made for the trial of alleged sexual offences other than rape. 9. In the Crown Court, cases involving allegations of sexual offences frequently involve complex and sensitive issues and only those Circuit Judges and Recorders who have been specifically authorised and who have attended the appropriate JSB course may try this type of work, although it is open to a Resident Judge to decide that any particular, less serious case, may be tried by any Judge or Recorder. 10. A number of District Judges (Magistrates Courts) have now undertaken training in dealing with these difficult cases and have been specifically authorised to hear cases involving serious sexual offences which fall short of requiring committal to the Crown Court ( an authorised DJ(MC) ). As such, a procedure similar to that of the Crown Court will now apply to allegations of sexual offences in the Youth Court. Procedure 11. The determination of venue in the Youth Court is governed by section 24 of the Magistrates Courts Act 1980, which provides that the youth must be tried summarily unless charged with such a grave crime that long term detention is a realistic possibility 6, or that one of the other exceptions to this presumption arises. 12. Wherever possible such cases should be listed before an authorised DJ(MC), to decide whether the case falls within the grave crime provisions and should therefore be committed for trial. If jurisdiction is retained and the allegation involves actual, or attempted, penetrative activity, the case must be tried by an authorised DJ(MC). In all other cases, the authorised DJ(MC) must consider whether the case is so serious and / or complex that it must be tried by an authorised DJ(MC), or whether the case can be heard by any DJ(MC) or any Youth Court Bench. 13. If it is not practicable for an authorised DJ(MC) to determine venue, any DJ(MC) or any Youth Court Bench may consider that issue. If jurisdiction is retained, appropriate directions may be given but the case papers, including a detailed case summary and a note of any representations made by the parties, must be sent to an authorised DJ(MC) to consider. As soon as possible the authorised DJ(MC) must decide whether the case must be tried by an authorised DJ(MC) or whether the case is suitable to be heard by any DJ(MC) or any Youth Court Bench; however, if the case involves actual, or alleged, penetrative activity, the trial must be heard by an authorised DJ(MC). 14. Once an authorised DJ(MC) has decided that the case is one which must be tried by an authorised DJ(MC), and in all cases involving actual or alleged penetrative activity, all further procedural hearings should, so far as practicable, be heard by an authorised DJ(MC). 6 Section 24(1)(a) of the Magistrates Court Act

6 15. Committal proceedings and other hearings in cases in which jurisdiction has been declined may be dealt with by any District Judge or any Youth Court Bench. Cases remitted for sentence 16. All cases which are remitted for sentence from the Crown Court to the Youth Court should be listed for sentence before an authorised DJ(MC). Arrangements for an authorised DJ(MC) to be appointed 17. Where a case is to be tried by an authorised DJ(MC) but no such Judge is available, the Bench Legal Adviser should contact the Chief Magistrates Office (GL-CMO.DDJDeployment@hmcourts-service.gsi.gov.uk or by telephone on ) for an authorised DJ(MC) to be assigned. 31 st March

7 CONFIDENTIAL : JUDICIAL Annex A FAX To: District Judge Darnton / District Judge Anderson / District Judge Kitson at LEEDS Magistrates Court. Fax: Leeds Listing Office: From: (Legal Adviser) Court: Contact Phone Number: Defendants Name: Age: Offence Charged: Please send with this sheet the case summary and copy of any previous convictions. Trial & Case Management to be dealt with by: Authorised District Judge (MC) District Judge ( MC) Youth Panel Bench Sentencing to be dealt with by: Authorised District Judge (MC) District Judge ( MC) Youth Panel Bench Signed: Authorised District Judge (MC) 7