Criminal law

Victim statements

Since 1 October 2001, police officers should during the course of an investigation take from a victim of crime a 'victim personal statement'.

The use of these statements in subsequent criminal proceedings has been considered in a Practice Direction (Crime: Victim Personal Statements) 2001, The Times, 6 November.

This builds on the earlier decision of the Court of Appeal in R v Perks 2001 Crim LR 606.

Courts are to consider and take into account the victim's personal statement, but victims should be advised that they are not to give opinions as to the appropriate sentence.

The statement of the effects of an offence on the victim must be in evidentially proper form or supported by expert evidence and, in either event, served on the defence.

The court must not take into account assumptions which are not supported by evidence.

These statements may prove problematic for defence solicitors, particularly where there has been a plea of guilty for which the defence seeks the maximum discount.

The court in Perks helped by pointing out that the evidence of the victim alone should be approached with care; the more so if it related to matters which the defence could not realistically be expected to investigate.

However, if effects are suggested which are not supported by admissible evidence, the defence should not be afraid to seek a Newton hearing to test the matters placed before the court.

Young offenders

The only custodial sentence which is available in the youth court is a detention and training order.

For those who are older than12 years but younger than15 such an order is not available unless they are persistent young offenders.

In R v Manchester City Youth Court ex p D 2002 Crim LR 149, the district judge declined to deal with a defendant younger than 15 who was not a persistent offender, in relation to a crime (indecent assault) because he considered it may be necessary to impose some period of custody.

The matter was committed for trial to the Crown Court, where the circuit judge invited the defence to apply for judicial review of the district judge's order.

The Divisional Court quashed the decision to decline jurisdiction.

In an important decision which appears to differ from previous case law, the court held that a youth younger than 15 who was not a persistent young offender should not be committed for trial unless it was clear that a significant custodial sentence was required.

The fact that no detention and training order could be made for the particular youth was not a sufficient exceptional circumstance so as to justify committal.

If the offence before the court is not a grave crime then a committal for trial is not available in any event.

In such a case, the maximum detention and training order is 24 months.

This is so even for a series of summary only offences themselves individually subject to a six-month maximum.

The provisions of section 33 of the Magistrates Courts Act 1980 were overridden (C v DPP 2001 Crim LR 688).

However, when imposing these orders, account must be given for a guilty plea and also account taken of any time spent on remand.

In a situation where 15 months would have been the appropriate resulting sentence, such a penalty could not be imposed as a detention and training order.

It had therefore to be reduced to 12 months (R v Pitt 2002 1 Cr App R (S) 194).

Section 23 of the Children & Young Persons Act 1969 allows boys aged 15 and 16 to be remanded to prison (provided they meet strict statutory criteria) but not of girls of any age.

In R (SR) v Nottingham Magistrates Court 2001 (The Independent) 17 December, it was argued that this was in breach of articles 8 and 14 of the European Convention on Human Rights.

The court found that there was a legitimate basis for this discrimination and applied article 8 (2), holding that there was a legitimate purpose and the proportionality requirement was met because the number of male offenders could not be housed in secure accommodation, while the lower number of females could be so housed.

By Anthony Edwards, TV Edwards, London