Tag Archives: Youths

12 year old boys banned from every football ground in the UK

Two twelve-year-old boys from Newcastle have admitted throwing missiles during the aftermath of a Newcastle United v Sunderland football game in April 2013.  As a result, a Court has imposed three year football banning orders, effectively banning the boys from every football ground in the UK.

The boys were handed in to police by their parents following media reports of the incident, which erupted following Sunderland’s 3-0 win at the Newcastle United home ground.

 

The pair, who cannot be named as they are under 18 years old, have been banned from the city centre on match days and will have to surrender their passports whenever Newcastle or England play overseas.

Turning 17 year-olds into Adults at the Police Station

By Frances Trevena

A children’s charity and advocacy service “Just for Kids” launched a challenge to the detention of 17 year olds in police custody. The case was heard in the High Court last Tuesday; the grounds of challenge were that 17 year olds are routinely detained and held at police stations, often overnight, and are interviewed without the attendance of an appropriate adult in contravention of national law and international treaties.

The case that will test the validity of the system of arrest and police station detention of youths under 18 relates to a 17 year old boy who was arrested on suspicion of burglary. Having been detained at the police station he was not permitted, or offered, an appropriate adult to accompany him during interview.  The boy had not even been allowed to call his parents, who had no idea of his whereabouts. He was held overnight and later released without charge.

In their press release the charity gave another example of a 17 year old girl with learning difficulties whose father was at the police station but was not allowed to see her or sit with her during interview.

The Law

The Criminal Justice Act 2003 made provisions for the arrest and detention of children aged 16 and under. Amendments were made to the PACE Code, which governs what police can and cannot do from first stopping someone. It includes your rights regarding searches, drugs testing, identification and treatment while in detention.

Pace Code C relates to the detention, treatment and questioning of suspects by the Police. At 1.7, the code requires officers to treat as a juvenile, “anyone who appears to be under the age of 17”.

Where the arrested person is under 17, the code [C3.15]  makes provisions for the custody officer to:

• inform the appropriate adult, who in the case of a juvenile may or may not be a person

responsible for their welfare, as in paragraph 3.13, of:

     ∼ the grounds for their detention; C

     ∼ their whereabouts.

• ask the adult to come to the police station to see the detainee

And at [C3.18] tell the young person:

 

• the duties of the appropriate adult include giving advice and assistance;

• that they can consult privately with the appropriate adult at any time

The case brought by Just for Kids relies on the Children Act 2004, which requires various public bodies, including the police (s11(1)(h)) and the British Transport Police (s11(1)(i)), to act to promote the welfare of children.

 

Section 11 (2)Each person and body to whom this section applies must make arrangements for ensuring that—

(a)their functions are discharged having regard to the need to safeguard and promote the welfare of children; and

(b)any services provided by another person pursuant to arrangements made by the person or body in the discharge of their functions are provided having regard to that need.

This requirement mirrors the requirements in the UN Convention on the Rights of the Child (known as the UNCRC), and appears in other UK legislation, including the Children Act 1989 (section 1(1)) and the Borders, Citizenship and Immigration Act 2009 (section 55).

When the Supreme Court were asked to examine the wording above in the context of immigration cases in ZH (Tanzania) [2011] UKSC 4, Baroness Hale stated that the duty to have regard to the need to safeguard and promote the welfare of children meant that the best interests of children were a primary, but not only, concern. These best interests could be outweighed by other interests – in the case of detention these may include the need for justice, investigation of crimes and public safety – but that the best interests of the child, including where that child is aged 17, must be considered first.

In the case of young people detained, it appears that little consideration is given to the need to safeguard them, much less to promote their welfare. No one can argue that separating a child from his parents overnight, without informing his parents of his whereabouts, is in that child’s best interests.

UN Convention on the Rights of the Child, to which the UK is a signatory, states that:

Article 1:

a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.

Across the UK, the age for majority is 18.

Article 3(1):

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

 

And Article 40

 

(b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees:

   (i)    To be presumed innocent until proven guilty according to law;

   (ii)  To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence;

(iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians;

Alongside the concern that a young person may be prematurely separated from his or her family, are whether that child fully understands what is going on at the police station, and whether he or she will understand the importance of having legal advice, without the assistance of an adult to help them with these decisions.

Although it does not appear to form part of the current case, a child who is aged 17 or over may also be tested for drugs without an appropriate adult. The Criminal Justice Act 2003 amended the PACE codes in respect of testing for Class A drugs to set out that testing must take place with an appropriate adult where the detained person is under 17:

(5A) In the case of a person who has not attained the age of 17—

   (a) the making of the request under subsection (4) above;

   (b) the giving of the warning and (where applicable) the information under subsection (5) above; and

   (c) the taking of the sample,

may not take place except in the presence of an appropriate adult.

Therefore, once a child is 17, they can be tested for drugs – if someone refuses, they can be charged with a separate offence of failing to provide a sample.

It is simply not right that a 17 year old may be asked for a test, without an appropriate adult present, and then charged for an offence if they fail to do so.

Conclusion

Despite the arrests of children being on the decline, 75,000 17 year olds were arrested last year, indicating that this is not a minority problem. It is widespread and it is frequently distressing and confusing for young people to find themselves arrested and held by the police. In each of the cases in the Just for Kids press release, the young people had clean records and had never been in police detention before. Such detention is a frightening and bewildering experience, there are long periods of delay and young people may not understand the need to be represented at the police station. They need an adult there, whom they trust, to help advise them and if necessary to call a lawyer for them.

It is clear from examining the law, that the duties to children do not stop when they turn 17. They are still considered as youths within the criminal justice system and so it is an anomaly that prior to being produced in court, the police can treatment them as adults and that under the law, the police have individual discretion whether to treat them as young people. Absent the decision of the High Court in the case brought by Just for Kids, the UK is not fulfilling its obligations to these young people or its obligations to international treaties.

Frances is a barrister specialising in crime, family and immigration with a particular interest in representing young people at court.  Her chambers profile can be found here.

Prison Categorisation

If someone is sent to prison then how they will be managed in custody depends on what sort of a risk they present (or that the prison think they present).

Men over the age 21 form the vast majority of the prison population. Adult male prisons are divided into ‘open’ and ‘closed’ prisons. Closed prisons are more secure and prisoners aren’t allowed out without an escort. The higher the categorisation, the more onerous the prison existence will be.

Within the prison service, prisoners are divided into four categories; imaginatively named A, B, C and D:

Category A – Prisoners whose escape would be highly dangerous to the public or the police or the security of the State and for whom the aim must be to make escape impossible.

Category B – Prisoners for whom the very highest conditions of security are not necessary but for whom escape must be made very difficult.

Category C – Prisoners who cannot be trusted in open conditions but who do not have the resources and will to make a determined escape attempt.

Category D – Prisoners who present a low risk; can reasonably be trusted in open conditions, and for whom open conditions are appropriate.

Prisoners who are in Categories A-C will be held in closed conditions. If someone is held on remand, then they will be allocated to Category B, unless they are going to be on trial for a very serious offence and would be allocated to Category A, in which case they will be held in ‘Provisional Category A’ conditions.

The categorisation exercise will be carried out after someone is sentenced and will be decided after looking at a variety of factors; the offence, previous offending, length of sentence etc.

As part of every person’s sentence plan, the prisoner will generally work their way through the various categories until they are in Category D from where they will be released.

Adult females are categorised in a similar way (although there are far fewer than males). Category A is the same, the equivalent of Category B is ‘Restricted status’, Category C is ‘closed’ and category D ‘open’.

Youths are categorised in the same way as adult females.

Full details are in the relevant PSI (Prison Service Instructions) which can be found here for men, here for women and here for youths.

Custodial Sentence for Youths

Sentencing for youths is very different than for adults.

Restrictions

A sentence of imprisonment can ONLY be passed on someone who is aged 21 at the time of sentence. In practice, if someone is aged between 18 and 21 it is relatively straightforward. The maximum sentences are the same as for adults, but, instead of prison, the person will be sentenced to detention instead.

This applies to the other types of prison sentences as well – it is suspended sentence of detention, detention for public protection etc.

Murder

For someone convicted of murder, they will be sentenced to ‘custody for life’ – in practice the same as life imprisonment. Someone under the age of 21 cannot be sentenced to a whole life tariff however.

If someone is aged under 18 then the starting point (whatever the circumstances) is 12 years. This does not stop the Court from imposing a tariff much higher than 12 years in the appropriate circumstances.

For murder, it is the same rules as an adult except that the sentence is called ‘detention during Her Majesty’s Pleasure’.

General approach

The general rule is that offences will be dealt with in the Youth Court. This a ‘branch’ of the Magistrates Court with specially trained judges. Instead of the 6 months, the maximum sentence that they can pass is 2 years (or the maximum sentence for an adult, whichever is lower). The form of prison is called a Detention and Training Order (DTO). As with adults, this involves spending half of the sentence in a detention centre and the other half in the community under supervision.

The difference however is that the Youth Court can only pass a DTO in specified ‘chunks’ of time; 4, 6, 8, 10, 12, 18 and 24 months.

If someone is under the age of 15 then a DTO cannot be imposed unless they are a ‘persistent offender’, meaning that they have been in trouble several times before. For someone aged under 12, a DTO cannot be passed unless the court thinks that only such a sentence would be adequate to protect the public from further offending from him.

There is no power requiring the judge to take into account any time spent on remand for a DTO. If someone has spent time on remand however, the Judge should take this into account, as far as is possible, when sentencing.

When youths are sentenced in the Crown Court

Certain offences can lead to a sentence of more than two years, but this has to be imposed in the Crown Court. The Youth Court can send certain cases to the Crown Court. This only applies to offences where the maximum sentence is 14 years or more and, if the defendant is aged over 14, then causing death by dangerous driving or causing death by careless driving whilst under the influence of alcohol or drugs. These cases are called ‘grave crimes’.

If the Youth Court considers that the dangerous provisions apply and that the youth, if found guilty, may get a Detention for Public Protection sentence or Extended sentence, then they must be sent straight to the Crown Court.

For firearms offences where the minimum sentencing provisions apply, the person must be sent for trial in the Crown Court.

If a youth is sentenced in the Crown Court then they will either be sentenced to a DTO (if the Judge feels a sentence of 2 years appropriate), or detention under section 91 otherwise.

Youth Rehabilitation Orders

Legislation Criminal Justice and Immigration Act 2008 s 1
Who can get one? Under 18s
Maximum length 3 years (CJIA 2008 Sch 1 para 32(1))
Rehabilitation period 1 year from the date of conviction, or when the order ceases to take effect, whichever is longer (Rehabilitation of Offenders Act 1974 s 5(5)(da))

The basics

A Youth Rehabilitation Order (YRO) can broadly be described as a juvenile equivalent to the Community Order. As the name suggests, the order is geared towards rehabilitation and a correction of behaviour, as opposed to straight punishment. However, the order does contain punitive elements and the court can make up the order in whatever way it deems appropriate, subject to some limitations.
The order must not last longer than 3 years, by which point, all the requirements must have been complied with.

Types of order

There are three:
a) YRO
b) YRO with Intensive Supervision and Surveillance
c) YRO with Fostering

Power to order

When a person aged under 18 is convicted of an offence, the court may imposed a YRO, imposing any one or more of the requirements listed below. (CJIA 2008 s 1(1))

Test

In order for a court to impose a YRO, it must be satisfied that the offence is serious enough. Where it is so satisfied, there remains a discretion whether or not to impose the order. (Youth Sentencing Guideline 2009)

Reports

Before making a YRO, the court must obtain and consider information about the offender’s family circumstances and the likely effect of a YRO on those circumstances. (CJIA 2008 Sch 1 para 28)

The requirements

List of available requirements
Activity (see paragraphs 6 to 8 of Schedule 1)
Supervision (see paragraph 9 of that Schedule)
Unpaid work, in a case where the offender is aged 16 or 17 at the time of the conviction, (see paragraph 10 of that Schedule)
Programme (see paragraph 11 of that Schedule)
Attendance centre (see paragraph 12 of that Schedule)
Prohibited activity (see paragraph 13 of that Schedule)
Curfew (see paragraph 14 of that Schedule)
Exclusion (see paragraph 15 of that Schedule)
Residence (see paragraph 16 of that Schedule)
Local authority residence (see paragraph 17 of that Schedule)
Mental health treatment (see paragraph 20 of that Schedule)
Drug treatment (see paragraph 22 of that Schedule)
Drug testing (see paragraph 23 of that Schedule)
Intoxicating substance treatment (see paragraph 24 of that Schedule)
Education (see paragraph 25 of that Schedule)
(CJIA 2008 s 1(1))

Imposing requirements Requirements are imposed on a case by case basis; that is, the court will assess what is the most appropriate way in which to deal with the offender in light of all the circumstances.

Persistent offenders

Special orders YRO with Intensive Supervision and Surveillance/Fostering A court may only make such an order if:
a) the court is dealing with an offender for an offence which is punishable by imprisonment,
b) the court is of the opinion that the offence(s) are so serious that […] a custodial sentence would have been appropriate, and
c) if the offender was under 15 at the time of conviction, the court is of the opinion that he or she is a persistent offender. (CJIA 2008 s 1(4))
Who is a persistent offender? Parliament left this question ‘to the good sense of the court’ (R v B 2001 1 Cr App R (S) 113 (p 389)
No previous convictions The fact that an offender does not have previous convictions does not preclude him from being categorised as a persistent offender (R v S 2001 1 Cr App R (S) 18 (p 62))
Cautions Cautions can be used when assessing whether an offender is a persistent offender (R v D 2001 1 Cr App R (S) 59 (p 202))

YRO with Fostering

What is it? An order which requires that the offender resides with a local authority foster parent for a period not longer than 12 months, and must not include any period in which the offender is aged 18.
Why is it imposed? These orders are made because the court is of the opinion that the circumstances in which the offender is living contributed to a significant extent to the offending behaviour and that such an order would assist in the offender’s rehabilitation.
Other The order must also include a supervision requirement.
The offender must be legally represented.

YRO with Intensive Supervision and Surveillance

What can it include? The order may include an extended activity requirement (maximum 180 days) and a curfew requirement with an electronic monitoring requirement.
Why is it imposed? Typically, where the court feels that a conventional YRO would not ‘fit the bill’ and that the offender requires a heightened level of supervision in order for it to achieve the desired effect.