Unit 20 Young Defendants Procedure Flashcards
(44 cards)
Define “adult”
In the context of criminal procedure and mode of trial, an ‘adult’ is any person aged 18 or over. In the context of sentencing, however, ‘adult’ is sometimes used to mean those aged 21 or over, since it is at that age that an offender currently becomes liable to imprisonment.
Define “Child”
“Child” means a person under the age of 14 years.
Define “Young Person”
The definition sections referred to in (c) above also define ‘young person’ as a ‘person who has attained the age of 14 years and is under the age of 18 years’. Thus, a distinction has to be drawn between children (aged under 14) and young persons (aged 14 to 17 inclusive).
What is the age of criminal responsibility?
There is an irrebuttable presumption that a person who is under the age of ten cannot be guilty of a criminal offence
Does a youth accused have the right to elect a crown court trial on indictment?
No. An accused under the age of 18 has no right to elect a Crown Court trial. If a child or young person is sent to the Crown Court for trial, it is because the magistrates have decided that they should not accept jurisdiction — the most the accused may do is to make representations for or against staying in the youth court.
When MUST a young person be tried in the Crown Court?
a child or young person either must be tried in the Crown Court if charged:
i. with homicide, or
ii. with certain offences to which mandatory minimum sentence provisions apply, if applicable in the instant case;
When MAY a young person be tried in the Crown Court?
a child or young person may be tried in the Crown Court if charged:
i. with an offence to which the PCC(S)A 2000, s. 91, applies (offences carrying at least 14 years’ imprisonment in the case of an adult, together with those specified in s. 91 itself), or
ii. with an offence which falls within the ambit of the ‘dangerous offender’ provisions of the CJA 2003, or
iii. alongside an adult accused;
Can a child or young person be tried in an adult Magistrates Court?
Yes, a child or young person may be tried in an adult magistrates’ court if charged alongside an adult accused.
Are the public allowed in a youth court?
No.
Who is allowed to be present in a youth court?
a. members of the court and court officials;
b. parties to the case before the court and their legal representatives (lawyers cannot enter the courtroom if a case they are appearing in is not being dealt with at that time);
c. witnesses and other persons directly concerned in that case (witnesses are allowed to remain in court once they have given evidence);
d. bona fide representatives of news gathering or reporting organisations (but note the reporting restrictions set out below);
e. anyone else directly involved in the case (e.g., probation officers or social workers involved in the case); and
f. such other persons as the court may specially authorise to be present.
Do all children and young people require a parent or guardian?
If the accused is aged under 16, the court must (and if the accused is aged 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’.
What is a guardian?
‘Guardian’ is defined as any person who, in the opinion of the court, has for the time being ‘the care of the child or young person’
How is parent defined?
‘Parent’ is not defined in the 1933 Act but, by the Adoption Act 1976, s. 39, includes the adopter of an adopted child. In cases where the local authority has parental responsibility, their representative, rather than, or in certain cases as well as, the parent must (or may) be required to attend
When MUST a pbv hearing take place for children or young persons?
A plea before venue hearing must take place where there is a possibility of the child or young person being tried in the Crown Court because he or she is charged alongside an adult or where the offence is one to which the PCC(S)A 2000, s. 91, applies.
Can the pbv hearing take placed in the absence of a child or young person accused if one is necessary?
Yes. Section 24B enables the plea before venue procedure to be determined in the absence of a child or young person who is legally represented, and the court considers that, because of the accused’s disorderly conduct before the court, it is not practicable for proceedings to be conducted in his or her presence, and the court considers that it should proceed in the absence of the accused. In such cases, the legal representative is invited to enter a plea on behalf of the accused (and an indication by the representative of an intended guilty plea is deemed to be a plea of guilty under s.24B(2)(c)).
Proceedings under s. 24A or 24B can be adjourned. Where the accused is present, the adjournment may take the form of a remand, either in custody or on bail (s. 24C). The functions of the magistrates’ court under ss. 24A to 24C may be exercised by a single justice (s. 24D(1)).
How will the court determine allocation for a child or young person (pleading not guilty)?
Assuming that the child or young person indicates an intention to plead not guilty, the court will invite representations from the prosecution and defence on the issue of whether or not it is ‘necessary in the interests of justice’ to send the child or young person to the Crown Court for trial.
In coming to their decision on this question, the justices must balance what may well be conflicting interests. On one hand, it is desirable that there should be a joint trial (to avoid prosecution witnesses having to give their evidence twice, to avoid the risk of inconsistent verdicts, and to avoid the risk of disparity in the sentences which are passed in the event of conviction). On the other hand, a child or young person may well find appearing in the Crown Court an unduly traumatic experience.
What are the sentencing guidelines for children and young persons in terms of proper venue?
When the interests of justice test must be considered because the adult is sent for trial to the Crown Court, the court should conclude that the child or young person must be tried separately in the youth court unless it is in the interests of justice for there to be a joint trial.
• whether separate trials will cause injustice to witnesses or to the case as a whole (bearing in mind the possibility of video recorded testimony);
• the age of the child or young person (the younger the child or young person, the greater the desirability of trial in the youth court);
• the age gap between the child or young person and the adult (a substantial gap in age militates in favour of the child or young person being tried in the youth court);
• the lack of maturity of the child or young person;
• the relative culpability of the child or young person compared with the adult and whether the alleged role played by the child or young person was minor;
• the lack of previous convictions recorded against the child or young person. The guideline also notes that the court should bear in mind that the youth court now has a general power to commit for sentence following conviction. In appropriate cases, this will permit the same court to sentence adult and young offenders who have been tried separately.
Does the crown court have the power to remit a youth back to the youth court?
No, once the mags have declined jurisdiction, the youth cannot be sent back.
What are the mags sentencing powers following a guilty plea?
If the child or young person indicates a plea of guilty, and is thereby deemed to have pleaded guilty, the magistrates will consider whether their sentencing powers are adequate. Those powers are to make any one or more of the following orders:
a. absolute discharge;
b. conditional discharge;
c. a fine (up to £1,000 for an offender who has attained the age of 14; up to £250 for one who has not);
d. requiring the offender’s parents to enter into a recognizance to keep proper control of him or her.
An adult magistrates’ court is also able to make a referral order.
If these powers are not appropriate, the justices will remit the child or young person to the youth court to be sentenced
What are the maximum fines for children?
Up to £1,000 for an offender who has attained the age of 14; up to £250 for one who has not
What is the procedure where a co-accused of youth is charged summarily?
• If the child or young person indicates a plea of not guilty at the plea before venue hearing, the adult court MUST try him or her.
• If the child or young person indicates a guilty plea at the plea before venue hearing, or is subsequently found guilty, the magistrates will remit him or her to the youth court for sentence if the sentences which the adult court can impose are inappropriate.
• If, on the other hand, the adult pleads guilty and the child or young person pleads not guilty, the adult magistrates’ court MAY try the child or young person, or else remit him or her to the youth court for trial.
o Although the magistrates could theoretically try the child or young person (even though the adult has pleaded guilty, so that there will be no trial of the adult), it is much more likely that they will remit the child or young person to the youth court for trial.
o There is little justification for trying a child or young person alone in the adult magistrates’ court.
• If the child or young person pleads guilty (or the adult court does try the child or young person and he or she is found guilty), the adult court will remit the child or young person to the youth court if none of the sentences which the adult court can impose are appropriate.
In what 3 exceptional cases is the court of first appearance an adult Mags in a youth case? (ordinarily the youth court)
The first court appearance by a child or young person in respect of an alleged offence will be in the youth court unless the case is an exceptional one where the first appearance is in the adult magistrates’ court. Those exceptional cases are where:
a. the child or young person is jointly charged with an adult; or
b. the child or young person is charged with aiding and abetting an adult to commit an offence (or vice versa); or
c. the child or young person is charged with an offence which arises out of circumstances which are the same as (or connected with) those which resulted in the charge faced by an adult accused.
What are the 5 circumstances where a youth trial either may or must take place in the Crown Court?
a. where the child or young person is accused of homicide (i.e. murder or manslaughter) the case MUST be heard in the Crown Court; or
b. where the child or young person is charged with a firearms offence, and had attained the age of 16 at the date of the alleged offence, the case MUST be heard in the Crown Court; or
c. where the child or young person is accused of an offence carrying at least 14 years’ imprisonment in the case of an adult or one specified in s. 91 itself, the case MAY, depending on whether or not a sentence in excess of two years is likely to be appropriate, be heard in the Crown Court; or
d. where the child or young person is charged with a ‘specified’ offence (and so falls within the ambit of the ‘dangerous offender’ provisions of that Act), the case MAY be heard in the Crown Court, depending on whether the accused can properly be regarded as a dangerous offender; or
e. where the child or young person is charged alongside an adult who is to be tried in the Crown Court, the child or young person MAY also be sent to the Crown Court for trial, but only if it is necessary in the interests of justice to do so.
What is the only circumstance where a youth trial may take place in the adult magistrates court?
There is only one situation where the trial of a child or young person may take place in an adult magistrates’ court, namely where the child or young person is charged alongside an adult who is being tried in the magistrates’ court.
