Criminal Law

By Anthony Edwards, TV Edwards, London

LEGAL UPDATE

Youth referral orders

All magistrates and youth courts convicting those younger than 18 for the first time are now required to make a youth referral order.

In this context conviction includes those who have previously received a conditional discharge or been bound over.

The chart below summarises the court's duties.

If a defendant has pleaded guilty to all offences and the court does not intend to impose a sentence fixed by law, a custodial sentence, a hospital order, or an absolute discharge, it is bound to make a youth referral order.

If the defendant does not plead guilty to any offences the court has its normal sentencing powers.

If the defendant pleads guilty to some and is convicted of other offences, the court has a discretion whether or not to make a referral order.

If a referral order is made, the court may make ancillary orders and these will include the endorsement of licences and disqualification from driving.

It includes a power to make compensation orders.

But this seems to undermine the purpose of the referral order - which is to allow an element of restorative justice, with financial reparation an essential element of the contract into which the youth may enter with the youth offender panel.

In addition, the court must fix the length of the contract into which the defendant is to enter with the youth offender panel.

The length must be commensurate with the seriousness of the offence and it is good practice to record in writing the basis on which the court proceeds to sentence.

This prevents distortion when the matter reaches the panel.

The contract cannot be for less than three months.

The Judicial Studies Board has published guidance as to the length of contracts reflecting different levels of seriousness.

The table above contains a summary of the more usual offences under their relevant headings.

For offences of low seriousness contracts will usually be between three and four months; for medium seriousness between five and seven months; and for high seriousness between eight and nine months.

These periods are fixed on the basis of a speedy guilty plea by 16 or 17-year-olds.

To the extent that a defendant is younger, a shorter period may be appropriate although a sentence cannot be reduced below three months.

Periods of between ten and 12 months are reserved for those who enter their guilty pleas to all offences late in the day, or for those who plead to some but are convicted of other offences or who commit further offences and for the most serious group of offenders.

The passing of the youth referral order completes the case conducted in the court.

Thereafter, further advice may be required in relation to the powers of the youth offender panel and it would be good practice to obtain a further form CDS2 at that point.

While the Home Office has discouraged the presence of lawyers before a youth offender panel it is a matter that solicitors will wish to consider with individual clients, particularly as parents may find it difficult to represent their child's best interests and have difficulty in understanding the procedures and consequences involved.

The law is contained in section 22 of the Powers of Criminal Courts (Sentencing) Act 2000.

The panel may allow any person, who appears (to the panel) to be capable of having a good influence on the offender, to attend any such meeting.

A legal adviser may well fall into that category, particularly if it will encourage a young person to comply with the contract and so avoid breach proceedings.

The possible contract provisions, which will need to be proportionate to the seriousness of the original crime, are as follows:

* Financial/other reparation;

* Mediation;

* Unpaid work;

* To be at home;

* Attendance at school/work;

* Specified activities;

* Attend places at specified time;

* Not to go to specified place/person;

* Enable supervision.

If a defendant does not attend the youth offender panel or agree the contract or comply with its terms, the remedy for the panel is to refer the matter back to the court.

The court should first consider whether it is satisfied that the panel is entitled to find a breach of the contract.

If a breach is found, the court has power to revoke and

re-sentence the defendant, but it should be noted that there is no power to sentence to a custodial sentence for the breach itself.

In fixing the sentence on breach the court must take account of the reasons for the breach and the degree of compliance with the contract.

If a defendant has committed two offences and is then referred to a panel for the first, the court may also refer him (for up to 12 months in total) for the second.

However, if the defendant has committed and been sentenced to a referral order for one crime, and then commits another it is only in exceptional circumstances that a further referral order may be made.

If an order is not made the court revokes the original referral order and sentences for both matters.