Monday 29 August 2011

Explaining our law and legal system ... No.7 ... Youth Justice ... Part 2 (Modern System)

Updated 30th August

The key features of the youth justice system:

For youth justice purposes, a child is aged 10 to 13 and a young person is aged 14 to 17.  Persons under age 10 cannot, in law, be guilty of a criminal offence though local authorities may apply to a Magistrates' Court for a Child Safety Order (Crime and Disorder Act 1998 s11) and they are empowered to institute "care proceedings" under the Children Act 1989.

Part 1 of this post noted that the principal objective of the youth justice system is prevention of offending by children and young persons.  Further, every court in dealing with a child or young person shall have regard to the welfare of the child or young person.

The Criminal Justice and Immigration Act 2008 s.9 was enacted to alter the law relating to the purposes of sentencing for offenders aged 10 to 17.  This has not yet been implemented.

The principal objective appears to be somewhat at odds with the U.N. Convention on the Rights of the Child which states in Art 3:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

There is a Youth Justice Board (YJB) and also local authorities operate Youth Offending Teams (YOT).

Youth Courts which are based in Magistrates' Courts.  Exceptionally, children or young persons can be tried in the Crown Court.

The Youth Justice Board (YJB):

The YJB was created by the Crime and Disorder Act 1998 s.41 and it oversees the youth justice system in England and Wales.  The YJB is an executive non-departmental public body and its board members are appointed by the Secretary of State for Justice.  However, it operates at arms length from the government and has an extensive list of functions set out in section 41(5).  A fuller description is in "Introduction to the Youth Justice Board."

Youth Offending Teams (YOT):

Local authorities are required to establish Youth Offending Teams - Crime and Disorder Act 1998 s.39.  The teams are multi-disciplinary bodies, comprising staff from the Police, Probation Service, Social Services, Health and Education services.  This enables them to more comprehensively respond to the needs of children and young people who have offended and those who are at risk of doing so.  The YOT will identify the needs of each young person, the specific problems leading to offending and the risk that he or she poses to others.  The YOT can then identify suitable programmes to
address the needs of the young person with a view to preventing offending or re-offending.  The YOT has a key role in providing information about offenders for sentencing purposes.  YOTs supervise young people who have offended are serving orders in the community.  The Youth Justice Board sets performance indicators for YOTs.  The website of the YOT in Tameside, Greater Manchester gives a good indication of the range of work done generally by YOTs over the country.  See also Making it count in court which sets out how YOTs operate.

Youth Offender Panels are set up by the YOT to deal with offenders referred to them.  The Panels have statutory authority - Powers of Criminal Courts (Sentencing) Act 2000 s.21.   So-called "Referral Orders" are covered by section 16 of this Act.   See also BBC - Adam's Case.   Local authorities frequently seek suitable members of the public to become Youth Offender Panel members - see, e.g., Tameside.

Kendal Magistrates Court / Youth Court
Youth Courts:

Each Local Justice Area in England and Wales is required to establish a Youth Panel comprising those magistrates who are authorised to sit in the Youth Court - see Youth Court (Constitution of Committees and Right to Preside) Rules 2007
The Youth Court is part of the Magistrates' Court.

The judiciary in the Youth Court will be either a bench of three Justices of the Peace (JPs) or a professional judge such as a District Judge (Magistrates' Courts).  Where a bench sits it must normally comprise at least one man and one woman.  JPs have to be trained and authorised as provided by the Courts Act 2003 s.50.    JPs are advised on law and procedure by a legally qualified adviser.  There is provision for other other ranks of judge to sit in the Youth Court - see Children and Young Persons Act 1933 s.45 as affected by Courts Act 2004 s.66.

Trial of most criminal cases involving children or young persons will be in a Youth Court.  The court may in any case require the parent(s) or guardian to attend and must generally do so if the child or young person is under the age of 16 - Children and Young Persons Act 1933 s.34A.  This point was raised recently by a District Judge and it is a worrying feature that parents of older young persons often do not attend.   During a Youth Court sitting, only certain persons may be present - C&YPA 1933 s.47.  Also, reporting restrictions apply - C&YPA 1933 s.49 but the court has power to order that restrictions will not apply.  In the recent "August disorder" cases this led to the Crown Prosecution Service (CPS) issuing guidance to prosecutors about applying for removal of restrictions once a conviction was reached.  Notwithstanding this guidance, it should be very much the exception that children and young persons are named publicly. International law and practice emphasises the importance of protecting the privacy of children and young persons involved in legal proceedings.

Secure accommodation:

Children and Young Persons are not imprisoned but, in certain circumstances, they can be held in custody in one of three forms of accommodation - sometimes referred to as "the secure estate."

Oakhill Secure Training Centre
The three forms are: Young Offender Institution (YOI); Secure Training Centres (STC) and Secure Children's Homes.  The YJB commissions the places in all three.  After sentence (or remand in custody) the YJB Placement Team decides in which part of the secure estate the child or young person will be held.  The decision is based on an assessment undertaken by the YOT and also on factors such as the availability of places , age, gender, maturity and the risks associated with the individual.  The aim is to accommodate the individual as close as possible to home so that contact with positive family relationships can be maintained.   England and Wales makes greater use of custody for this age group than many other democratic countries.  The YJB has the view that custody should be a last resort - see the YJB's publication relating to Custody.   

Out of court handling of young offenders:

Offences committed by children or young persons are not always dealt with via the Youth Court since it can be preferable to keep cases out of the court system provided that this is commensurate with the gravity of the case.  Court proceedings can affect the young person for many years afterwards: reducing chances of employment and preventing them fulfilling their potential.  Out of court methods include penalty notices for disorder, reprimands, final warnings, and youth conditional cautions.

Penalty Notices for Disorder are available for young people aged 16 and 17.  They offer an additional method of dealing with low-level offending and anti-social behaviour.  There must be sufficient evidence to support a successful prosecution.  When a notice is ussed, the Police inform the YOT.

Reprimands and final warnings replaced cautions for young people - Crime and Disorder Act 1998 ss. 65 and 66.  They cannot be given unless the offence is admitted.  They are not court orders but can be taken into account by the court when looking at antecedent history.  A reprimand will be given for many first time offenders who have committed less serious offences.  A final warning is given to those who have received a reprimand before or in cases where the offence is considered to be too serious for a repirmand.  When a final warning is given, the YOT is informed and the young person is then assessed with a view to work being done to prevent further offending. No further final warning may be given unless it is at least 2 years since the earlier warning and the offence is not so serious as to merit charge.
    Youth conditional cautions became available with the Criminal Justice and Immigration Act 2008 s.48. but are currently only available in certain areas of the country.  They are issued in accordance with CPS Guidance and a statutory code. Currently, these cautions are available for 16 and 17 year olds though this could be extended to lower ages.  Conditions attached to such a caution may include provisions to support rehabilitation, effect reparation or punishment and can include a fine and/or an attendance centre requirement.  YOTs have a key role in assessing cases, recommending, supervising and delivering Youth Conditional Caution conditions, subject to approavl and oversight by the CPS.

    Sentences available to the youth court:

    The court has a considerable array of powers.  Absolute and conditional discharges; referral orders; fines / compensation orders; youth rehabilitation orders; Detention and Training Orders.  Sentencing of young offenders is a difficult task involving balancing the seriousness of the offence and offending history against the welfare needs of young offenders.  The availability of some orders depends on the age of the offender.  The court will bear in mind the principal aim of the youth justice system as well as the welfare principle.

    The whole range of sentences and disposals may be seen on the Justice website - Justice - Orders and Disposals

    Sentencing Guidelines - Over-arching principles: Sentencing Youths

    Trial in the Crown Court - grave offences etc:

    The general aim of the system is to avoid Crown Court trial but, in some instances the law requires it in relation to very serious offending.   The legal provisions are complex and there is considerable case law.   The CPS website has a summary of the various provisions - see Youth Offenders.

    The more usual type of case committed for trial in the Crown Court is that of so-called serious (grave) offences - that is, an offence covered by the Powers of Criminal Courts (Sentencing) Act 2000 s.91.  Another type of case is where the child or young person is charged jointly with an adult and the youth court considers it necessary in the interests of justice to commit them both to the Crown Court for trial - Magistrates Courts Act 1980 s.24.   For a recent case on this latter power see R (W a minor) v Leeds Crown Court [2011] EWHC 2326 (Admin).  Further possibilties of Crown Court trial arise where questions of "dangerousness" arise - see NACRO 2008.

    Trial of children and young persons in the Crown Court has raised a considerable number of problems and has resulted in criticism of the legal system.  Please see Law and Lawyers earlier posts: Youth Court Trial (April 2010); Criminal Liability of Children and their trials (May 2010).

    System in Scotland:

    Scotland has its own distinctive system of youth justice.  A great detail of information can be accessed via - "Youth Justice and offending in Scotland: link to information, policy and research."

    Based on a report by Lord Kilbrandon in 1964, Scotland closed its Juvenile Courts in 1968 and introduced  Children's Hearings. The Hearing comprises three members of the public who live local to the young people being seen. The Hearing has none of the legal trappings of a court, although the lay members are trained.
    Kilbrandon saw the needs of offenders and those requiring care and protection to be the same. The Hearing therefore focuses on the needs of the young person, whose interests are paramount. In keeping with thinking of the time, minimal intervention that avoided stigma was thought to be the most effective response.  In the first part of the 21st Century, the system has been undermined by some of the punitive measures introduced in England and Wales by the New Labour government (alongside major investments in prevention and early intervention). It nonetheless remains distinctive and attracts considerable international interest.  The Scottish Executive remains committed to the tried and tested system of Children's Hearings and has enacted legislation to give the hearings more support.

    System in Northern Ireland:

    Northern Ireland also has its own separate system of youth justice and has a Youth Justice Agency.  The Northern Ireland Executive currently undertaking a review of the system.  An interesting development has been "Youth Conferencing"


    A major criticism of the system in England and Wales must relate to the sheer complexity and breadth of the legislation.  Few areas of criminal justice are as impenetrable as statute-upon-statute has introduced reforms but do so by the technique of cutting an pasting into earlier Acts.  Also, from time-to-time, additional complexity arises from various government initiatives such as Youth Restorative Disposals (trialled in 2008-9) and the Deter Young Offender Scheme.

    Further criticism relates to the low age (10) of criminal responsibility.  Scotland increased it to 12 in 2009.  See Children and Young People Now - January 2009.

    In 2008, a report from the United Nations Committee on the Rights of the Child made many recommendations and was critical of the degree to which custody was used - see NACRO article.

    Further critical material may be seen at:
    Centre for Social Justice: Breakthrough Britain: Youth Justice
    Standing Committee for Youth Justice - a reform body
    Centre for Crime and Justice Studies: 10 years of Labour's youth justice reforms: an independent audit
    Equality and Human Rights Commission Research paper 50 - "Differential treatment in the youth justice system"
    Law and Lawyers - Secure Training Centres - use of restraint

    As ever, Law and Lawyers welcomes constructive comment especially, on this subject, from practitioners experienced in the youth justice system and from youth magistrates.

    Other Links:

    Youth Court Bench Book - Judicial College - (previously Judicial Studies Board)
    Justice - Orders and Disposals

    Making it count in court
    The Youth Rehabilitation Order ..
    The Scaled approach ...
    The scaled approach and Youth Rehabilitation Orders

    1 comment:

    1. Boy aged 11 sentenced to Youth Rehabilitation Order for 18 months - The Guardian 31st August