Young Defendants and Youth Court Trials

In this chapter we look at the trial of young defendants (those under the age of 18) in the youth court and those exceptional situations where a young defendant must or may be tried in an adult court.

The aims of the youth justice system

Section s.37(l) of the Crime and Disorder Act 1998 provides that it ‘shall be the principal aim of the youth justice system to prevent offending by children and young persons’. However, s.44(l) of the Children and Young Persons Act 1933 provides that ever)' court ‘in dealing with a child or young person who is brought before it, either as an offender or otherwise, shall have regard to the welfare of the child or young person’.

Terminology

The ‘youth court’ has jurisdiction to deal with young defendants, namely those aged 10-17 years (inclusive); 10-13-year-olds are called ‘children’ and 14—17-year-olds are called ‘young persons’.

Age of criminal responsibility

There is an irrebuttable presumption that a person who is under the age of 10 cannot be guilty of a criminal offence (s.50 of the Children and Young Persons Act 1933). In T v United Kingdom (2000) 30 EHRR 121, the European Court of Human Rights rejected the argument that this age was too low. The Court noted (at [48]) that the age of criminal responsibility varies widely across Europe, from 7 to 18, and went on to say (at [72]):

The Court does not consider that there is at this stage any clear common standard amongst the member States of the Council of Europe as to the minimum age of criminal responsibility. Even if England and Wales is among the few European jurisdictions to retain a low age of criminal responsibility, the age of ten cannot be said to be so young as to differ disproportionately from the age-limit followed by other European States. The Court concludes that the attribution of criminal responsibility to the applicant does not in itself give rise to a breach of Art.3 of the Convention.

There used to be a rebuttable presumption that a child aged between 10 and 14 was incapable of committing an offence. This presumption, sometimes called doli incapax, was that children under the age of 14 did not know the difference between right and wrong (and therefore were incapable of committing a crime) unless the prosecution were able to prove that they did have this understanding. Hence, a child aged under 14 could be convicted of a criminal offence only if the presumption of doli incapax was first rebutted. To rebut the presumption, the prosecution had to adduce evidence to prove that the child knew that what he was doing was seriously wrong, rather than simply naughty. This presumption was, however, abolished by s.34 of the Crime and Disorder Act 1998. In R v JTB [2009] UKHL 20; [2009] 1 AC 1310, the House of Lords confirmed that, by enacting s.34, Parliament intended to abolish both the presumption and the defence of doli incapax, so it is not open to a defendant to raise doli incapax as a defence.

For a brief discussion of the age of criminal responsibility, see Penelope Brown, ’Reviewing the age of criminal responsibility’ [2018] Crim LR 904-909.

Youth offending teams

Pursuant to s.39 of the Crime and Disorder Act 1998, each local authority has to establish a youth offending team (‘YOT’). Each YOT includes a probation officer, a person with experience of social work in relation to children, a social worker, a police officer and a person with experience in education. The functions of the YOT are to co-ordinate the provision of youth justice services for all those in the authority’s area who need them, and to carry out such functions as are assigned to it in the local authority's ‘youth justice plan’.

Youth courts

By virtue of s.45(2) of the Children and Young Persons Act 1933, a lay justice or district judge has to be authorised to sit in a youth court before he/she can do so. Magistrates (including district judges) have to receive special training before being authorised to sit in the youth court.

A key point to underline about the jurisdiction of the youth court is that the distinction between indictable, triable either way and summary offences does not apply to young defendants. Thus, a bench of justices in the youth court may try an offence which, in the case of an adult defendant, would be triable only in the Crown Court. Furthermore, a child/young person has no right to elect Crown Court trial in any case where an adult defendant would have such a right (although the justices in the youth court may decline jurisdiction in respect of certain indictable offences - see below).

A useful resource is the Youth Court Bench Book (Judicial College, August 2017).

Attendance of parent or guardian

Section 34A(1) of the Children and Young Persons Act 1933 provides that if the child/young person is under 16, the court must (or, if the child/young person is 16 or 17, the court may) require a parent or guardian 'to attend at the court during all the stages of the proceedings, unless and to the extent that the court is satisfied that it would be unreasonable to require such attendance, having regard to the circumstances of the case’. A child or young person who is in local authority care will be accompanied by a local authority social worker or foster parent (see s.34A(2)).

The Sentencing Council Guideline on children and young persons (at para.3.2) says that, although this requirement can cause a delay, ‘it is important it is adhered to. If a court does find exception to proceed in the absence of a responsible adult then extra care must be taken to ensure the outcomes are clearly communicated to and understood by the child or young person’.

Reporting restrictions in the youth court

Under s.49(l) of the Children and Young Persons Act 1933, no matter relating to any child or young person concerned in youth court proceedings (or appeals from youth court proceedings) may, while he is under the age of 18, be included in any publication if it is likely to lead members of the public to identify him as someone concerned in the proceedings. For these purposes, a person is ‘concerned in the proceedings’ if he is the accused or a witness (subs. (4)). The protected information includes the person’s name and address, the identity of any school or other educational establishment he attends, and the identity of any place of work; the restriction also applies to any ‘still or moving picture of him’ (subs.3A)).

For these purposes, ‘publication’ is defined ver}' widely, and includes ‘any speech, writing, relevant programme or other communication in whatever form, which is addressed to the public at large or any section of the public (subs.(3)).

It should be noted that the restrictions imposed by s.49 apply only while the person in question remains under the age of 18. This is seen by some as a disadvantage because of the risk that media reporting of the offending once the person becomes an adult may have an adverse effect on their rehabilitation.

Breach of the restrictions imposed by s.49 is a summary offence, punishable with a fine of any amount (subs.(9)).

The court may lift the ban on publicity to the extent it considers necessary either to avoid injustice to the child or young person (s.49 (5) (a)) or, in the case of one who is unlawfully at large, where it is necessary to do so for the purpose of apprehending him (s.49(S)(b)). However, s.49(S) (b) applies only to a child or young person who is charged with, or convicted of, a violent or sexual offence or an offence punishable in the case of an adult with imprisonment for 14 years or more; moreover, the power conferred by s.49(S)(b) may be exercised only upon the application of the DPP (this includes Crown Prosecutors) (s.49(7)). An order under s.49(S)(a) might be appropriate where, for example, the defence wish to make an appeal for potential witnesses to come forward.

The court may also lift the ban on publicity where a child or young person has been convicted of an offence, if it is satisfied that it is in the public interest to do so (s.49(4A)). Before doing so, it must afford an opportunity to the parties to make representations (s.49(4B)).

In McKerry v Teesdale Justices (2000) 164 JP 355, Lord Bingham CJ stressed (at [25]) that the power to dispense with anonymity must be exercised with ‘very great care, caution and circumspection’, and added:

It would be wholly wrong for any court to dispense with a child/young person's prima facie right to anonymity as an additional punishment. It is also very difficult to see any place for 'naming and shaming'. The court must be satisfied that the statutory criterion that it is in the public interest to dispense with the reporting restriction is satisfied. This will very rarely be the case, and justices making an order under S.49I4A) must be clear in their minds why it is in the public interest to dispense with the restrictions.

Detention where bail is withheld

Section 91 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 applies where a person under 18 is charged with, or convicted of, one or more offences. It provides that, if the child/young person is not released on bail, the court must remand him to local authority accommodation, in accordance with s.92, or to youth detention accommodation, in accordance with s. 102.

Remands to local authority accommodation

This is a remand to accommodation provided by or on behalf of the local authority designated by the court (s.92(l)).

Section 93 enables the court, when remanding to local authority accommodation, to impose any conditions that could be imposed under s.3(6) of the Bail Act 1976. Under s.93(3), a court remanding a child/young person to local authority' accommodation may also impose requirements on die designated authority to secure compliance with the conditions imposed on the child/young person; the court can also stipulate that the child/young person must not be placed with a named person.

Remands to youth detention accommodation

Remand to ‘youth detention accommodation’ means remand to a secure children’s home, a secure training centre, a young offender institution, or detention accommodation for detention and training orders (s. 102). Remand to youth detention accommodation is possible only' where either of two sets of conditions (set out in ss.98 and 99) is satisfied (s.91(4)).

The first set of conditions (in s.98) is as follows:

  • • age condition: the child/young person must have attained the age of twelve;
  • • offence condition: one or more of the offences must be:
    • o a violent or sexual offence (specified in sch. 15 to the Criminal Justice Act 2003); or
    • o an offence punishable with at least 14 years’ imprisonment;
  • • necessity condition: the court must be of die opinion, after considering all the options for the remand of the child/young person, that only a remand to youth detention accommodation would be adequate to:
    • O protect the public from death or serious personal injury (whether physical or psychological) occasioned by further offences committed by the child/young person; or
    • O to prevent die child/young person committing imprisonable offences;
  • • representation condition:
    • o the child/young person is legally represented at court; or
    • O representation has been withdrawn because of the child/young person’s conduct or because it appeared that the child/young person’s financial resources were such that he was not eligible for such representation; or
    • o representation was refused because it appeared that the child/young person’s financial resources rendered him ineligible for such representation; or
    • o the child/young person has refused to apply for representation.

The second set of conditions (in s.99) is as follows:

  • • age condition: the child/young person must have attained the age of twelve;
  • • sentencing condition: there must be a real prospect that the child/young person will be sentenced to a custodial sentence;
  • • offence condition: one or more of the offences is imprisonable;
  • • history condition:
    • O the child/young person has a recent history of absconding while subject to a custodial remand and one or more of the present offences is alleged (or found) to have been committed while he was remanded to local authority accommodation or youdt detention accommodation; or
    • o the offence (s) amount, or would (assuming the child/young person is convicted) amount, to a recent history of committing imprisonable offences while on bail or subject to a custodial remand;
  • • necessity condition (as under s.98);
  • • representation condition (as under s.98).

Differences between the youth court and the adult magistrates’ court

The main difference between the youth court and the ordinary (adult) magistrates’ court is that there is less formality in the youth court than in an adult magistrates’ court. For example:

  • • there is no dock;
  • • the accused and any witnesses under the age of 18 are addressed by their first names;
  • • the oath taken by witnesses is to promise (not swear) to tell the truth;
  • • the terminology differs slightly, for example, a ‘finding of guilt’ (not a ‘conviction’) and an ‘order made upon a finding of guilt’ (not a ‘sentence’). Note, however, that the child/young person pleads ‘guilty’ or ‘not guilty’.

Exclusion of the public

The public are excluded from the courtroom by virtue of s.47(2) of the Children and Young Persons Act 1933, the effect of which is summarised by r.24.2(l)(c) of the Criminal Procedure Rules:

[U]nless the court otherwise directs, only the following may attend a hearing in a youth court -

  • (il the parties and their legal representatives;
  • (ii) a defendant's parents, guardian or other supporting adult;

liiil a witness;

  • (iv) anyone else directly concerned in the case; and
  • (vl a representative of a news-gathering or reporting organisation.

The youth court can (under s.47(2)(d)) specially authorise other people (such as law students) to be present.

Note that if a child/young person is appearing as an accused, or as a witness, in the adult magistrates’ court or the Crown Court, the public have the right to be present unless the court takes the exceptional step of sitting in private.

Summary trial procedure

Where the child/young person pleads not guilty, the trial procedure is the same as that in the adult magistrates' court (and so the sequence of events set out in r.24.3 of the Criminal Procedure Rules takes place).

Under r.24.11 (7)(a), if the child/young person pleads guilty or is found guilty, the court must, before passing sentence, give the defendant, and his parents, guardian or other supporting adult, if present, an opportunity to make representations.

 
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