Children as suspects and defendants

• Introduction
• Youth Justice Roles within the CPS
  • Area Youth Justice Leads (AYJL)
  • Youth Justice Specialists (YJS)
  • Senior Crown Prosecutors (SCP)
• Evidential considerations
  • Determining the age of the offender
  • Mens rea
  • Confessions
  • Lies
  • Defences – modern slavery
  • Defences - duress
• Public Interest considerations
  • Circumstances of the child
  • Offence-specific public interest guidance
  • Diversion from the court process – out of court disposals
• Jurisdiction of the youth court
• Effective Participation
  • What effective participation means
  • What measures can ensure effective participation
  • Determination by the court
• Bail and remand
• Reporting restrictions
• Sentencing

Introduction

For the purposes of this guidance, the terms ‘child’ and ‘children’ will be used to refer to all young people below the age of 18. Using the words ‘child’ or ‘children’ is preferred practice in CPS written and oral work. This stems from ‘Child First’ justice which is the belief that children coming to the attention of the Youth Justice System (YJS) are seen as ‘children’ first and ‘offenders’ second. The primary focus of this approach is prevention, diversion, and a clear commitment to developing interventions to avoid unnecessary prosecutions and criminalisation of children.

A child below the age of 10 years cannot be guilty of a criminal offence: section 50 Children and Young Persons Act 1933. A child aged 10-17 inclusive may however find themselves involved with the criminal justice system.

The CPS is committed to ensuring that the special considerations which apply to cases involving children are enshrined in its working practices and form part of the training of its prosecutors.

This guidance sets out the approach prosecutors should take in applying the Code for Crown Prosecutors when deciding whether or not to prosecute, including offering an out of court disposal. It addresses evidential considerations and then public interest considerations. The public interest considerations are further to the specific consideration given in the Code to children, in particular at 4.14(d), and address the personal characteristics of the suspect and defendant as well as specific offence types. This guidance makes clear that, absent a statutory requirement or compelling reason, children and young persons should be tried in the youth court. It acknowledges the importance of effective participation in proceedings by defendants.

A decision to prosecute a child is susceptible to judicial review if it can be shown that the prosecutor has not taken into account all the information about a child’s background and the public interest factors set out in the Code. It is crucial that prosecutors therefore record the rationale for their review decisions and, in doing so, address all relevant considerations.

Decision-making and the review of cases involving children must be dealt with expeditiously and avoid delay. Prosecutors have a responsibility to draw the need to prioritise both first hearings and trials involving children to the court’s attention. It is accepted by all agencies that there is little point in conducting a trial for a young offender long after the alleged commission of an offence when the offender will have difficulty in relating the sentence to the offence. 

A collaborative approach will assist with this. Effective partnerships within the criminal justice system will contribute to securing real improvements in the youth justice system and will help to give effect to Government policy. All Areas are encouraged to participate in local inter-agency groups with representatives from the youth and Crown Courts, Youth Justice Service managers, police, CPS, appropriate defence representatives and Victim Support Service co-ordinators.

The key considerations governing the decisions made by Crown Prosecutors in dealing with children are those contained in:

• The United Nations Convention on the Rights of the Child Article 3 “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
• Section 44 of the Children and Young Persons Act 1933: every court dealing with a child shall have regard to their welfare
• Section 37 of the Crime and Disorder Act 1998: the principal aim of the youth justice system is to prevent offending by children
• The Code for Crown Prosecutors, in particular the considerations as to whether a prosecution of a child is required in the public interest at paragraph 4.14(d)
• Standards for children in the youth justice system 2019
• NPCC Child Gravity Matrix: the decision-making tool used to assist in deciding the most appropriate outcome or disposal for children, based on the offence committed and taking into account aggravating and mitigating factors, to give a final score that will indicate an appropriate outcome. This Matrix remains subject to the need to apply the Code for Crown Prosecutors and other guidance referred to, but it provides a framework for that decision-making.
• NPCC Community Resolution guidance and NPCC Outcome 22 guidance
• The National Protocol on Reducing Criminalisation of Looked-After Children

These have been considered and applied in this guidance.

Youth Justice Roles within the CPS

Area Youth Justice Leads (AYJL)

The CCP or DCCP may appoint one or more Area Youth Justice Leads (AYJL). It will be a matter for the CCP or DCCP to decide what functions the AYJL should carry out, but they may include the following:

• act as a conduit and focal point, relaying information, knowledge, expertise, and advice between Youth Justice Specialists in Area and from CPS Headquarters, and feeding back challenges, training, or guidance needs to Area and the centre
• support the delivery of training within the CPS Area
• ensure that the Area has a sufficient number of Youth Justice Specialists
• monitor the quality of casework decision making involving child suspects and defendants; and/or
• liaise at a strategic level on behalf of the CCP/DCCP with local agencies

The Area Youth Justice Lead should be:

• a prosecutor of with sufficient expertise and capacity to fulfil the role. It is likely that this will be at DCP level or above, but the decision remains with the CCP
• familiar with the functions carried out by a Youth Justice Specialist; and
• given sufficient time to fulfil their duties as AYJL

Youth Justice Specialists (YJS)

A Youth Justice Specialist should be approved by the CCP/DCCP or Unit Head. The YJS should carry out the following functions:

• provide advice and mentor Senior Crown Prosecutors (SCP) when requested on issues or cases involving children that the SCP has conduct of
• undertake and/or supervise the review and decision making of complex or difficult files involving children as directed by the area
• whenever possible, Youth Remand Court cases should be prosecuted by a YJS, who will be able to review all the files that are appearing in that court

To be approved as a YJS, a lawyer must:

• be a Senior Crown Prosecutor with adequate experience and appropriate skills; and
• signed off by the CPS Area as having sufficient skills, training, and expertise; or
• accredited as an expert by attending the Youth Justice Specialist Training Course (CPS Direct prosecutors should be trained to be proficient in charging cases involving children))

Senior Crown Prosecutors (SCP)

All SCPs can make the decision to prosecute cases involving children. However, in more serious or complex cases, oversight and mentoring should be sought from a Youth Justice Specialist. It is expected that all SCPs will have access to training that equips them to deal with standard cases involving children, including the decision to prosecute cases in Youth Courts and deal with cases involving children jointly charged with adults in the magistrates' court. All trained SCPs can carry out an initial review of files prior to the first hearing to enable a child to enter a guilty plea if offered.

Evidential considerations

Determining the age of the offender

Section 99 Children and Young Persons Act 1933 and section 150 Magistrates' Courts Act 1980 sets out that where a person, whether charged with an offence or not, is brought before any court other than for the purpose of giving evidence, and it appears to the court that they are a child or young person, the court shall make enquiries as to their age, and the age presumed or declared by the court is deemed to be their true age. Section 405 Sentencing Act 2020 states that where the age of the offender must be determined by the court, or the Secretary of State, the person is deemed to be whatever age they appear to be after consideration of any available evidence by the court or the Secretary of State. Where the court has taken into account the available evidence and reached a determination, even if it is subsequently shown to be wrong, the original sentence remains valid, even if it was a sentence they could not have received had their true age been known: Brown [1989] 5 WLUK 246 and Steed [1990] 5 WLUK 72, which also emphasise that where there is a dispute as to the offenders’ age, it is appropriate to adjourn to obtain any available evidence.

Any dispute as to age should be raised at the first hearing. Where it is known that the age of the offender may be in dispute, prosecutors should ask the police to obtain documentary evidence of the offender’s age such as their birth certificate, passport or identity cards. Other records such as custody records, PNC printouts and antecedents are more likely to have been based on inaccurate information given to the police.

Difficulties can arise when the offender is a refugee or asylum seeker, as the documentary evidence listed in the paragraph above may well have been lost in transit. Guidance as to the assessments to be conducted in these circumstances is contained in the case of  R (on the application of B) v Merton LBC [2003] EWHC 1689 (Admin). Despite the age of the case, this approach has been endorsed and re-stated in the 14 January 2022 Home Office guidance Assessing Age, which refers to Merton-compliant age assessments. Evidence put before the court by the offender which is inconsistent with other evidence should be challenged by way of cross examination.

Mens rea

Care should be taken in assessing whether a child has the requisite mens rea for an offence: children may not appreciate the consequences of their actions or foresee those consequences. In terms of recklessness, children may not appreciate risk, or the need to mitigate it. The mental capabilities and maturity of the child are highly relevant to public interest, see below, but first prosecutors must carefully assess the evidence as to any mental element of the offence alleged.

Confessions

As with adults, the admissibility of statements wholly or partly adverse to the person who made it (“confessions”) are a matter for the court and, under section 76 Police and Criminal Evidence Act 1984, may be ruled inadmissible if it was obtained by oppression or in consequence of anything said or done, in the circumstances existing at the time, which was likely to make the confession unreliable. Children may be more susceptible to make such statements as a result of things said or done, such as peer pressure or pressure of circumstances, than adults and the circumstances in which any such statement was made, and to whom, need careful consideration if it is to be relied upon. Even if not excluded as evidence, a child’s mental development may still be relevant to the reliability of any statement they make which is adverse to them.

Lies

As with adults, the reliance to be placed on untruthful statements as evidence of guilt must be considered carefully. Per Lucas [1981] QB 720, an alleged untruthful statement must be to be a lie beyond reasonable doubt and may only be evidence of guilt if the court can be sure there was no innocent reason for lying. In the case of children and their mental development, there may especially be reasons why lies are told through immaturity rather than because of guilt.

Defences - modern slavery

Children can often find themselves involved in the supply of drugs either through social supply to friends or through Organised Crime Gangs (OCGs) using children as runners in county lines drug trafficking. Prosecutors should be aware that children used by OCGs may have a defence under Section 45 Modern Slavery Act 2015. Further information can be found in the CPS legal guidance on Modern Slavery, Human Trafficking and Smuggling.

Defences - duress

In R v Bowen [1996] 2 Cr App R 157, CA the court held that age will be a relevant characteristic in determining whether an offender was less able to withstand threats and pressure than an ordinary person.

Each case will need to be considered on its own merits, looking at the evidence as a whole including the intellectual capability and maturity of the child.

Public Interest considerations

The starting point in asking whether a prosecution is required in the public interest is the Code for Crown Prosecutors, in particular paragraphs 4.9 to 4.14 and factors (a) to (g) in that latter paragraph. In addition to those principal considerations, the following may also be important to consider at the public interest stage. In particular, the circumstances of the individual child – some examples of which are set out below – may be highly relevant as part of the overall public interest assessment.

It is essential in all cases involving children to ensure that all matters relevant to the public interest decision are clearly identified, considered, and balanced. A note should be made of the factors identified but rejected or outweighed by other considerations. The decision to prosecute must only be taken after a full review of the case and the background information, including information concerning the suspect provided by the Youth Justice Service, police, or local authority. Failure to show that the Code and the legal guidance has been followed and properly applied to all the information on the case may result in the decision to prosecute being quashed.

R (on the application of E, S and R) v DPP [2011] EWHC 1465 (Admin) concerned allegations of child sexual offences by E on her younger siblings. A multi-agency strategy group had formed the view that prosecution was not in the best interests of any of the children. Nonetheless, the decision was taken on full review of the papers to prosecute E. It was the court’s view that the rationale for this decision was inadequately expressed:

“reading the decision letter of 11 August 2010, and having regard to the key parts of the guidance … it is quite impossible to know whether the Crown Prosecutor simply failed to consider the views of the strategy group …  or, having considered them, decided they were irrelevant, or, having accepted that they were relevant, rejected the various points being made by the strategy group, or, having accepted the various points the group had made, considered that they were nonetheless outweighed by other factors.”

Please also see R v Chief Constable of Kent and Another ex parte L, R v DPP ex parte B [1991] 93 Cr App R 416: whilst rare, decisions to prosecute can be overturned upon judicial review where they are made regardless of or contrary to a settled policy of the DPP.

Circumstances of the child

The circumstances to be considered include their accommodation, family background and the physical and mental health of the child. The overarching principles of preventing offending and the welfare of the children remain paramount when taking the child’s circumstances into account. Prosecutors may be assisted by reference to the definitive guideline for sentencing children and young people published by the Sentencing Council. The principles in this guideline are relevant not just at sentencing but throughout.

First time entrants (FTE)

Where a case is referred to the CPS for a charging decision or police have charged a Not Guilty Anticipated Plea (NGAP), it is expected that a First Time Entrants and Serious Offending Checklist will be completed and provided by police. If the checklist has not been provided and the background information contained within the body of the file is insufficient to enable a review decision to be made, the prosecutor should escalate the matter with the police in accordance with local escalation processes.

Physical and mental health of the child

The children may have suffered violence, sexual abuse, emotional abuse or been exposed to domestic violence, substance misuse, divorced parents or a parent/carer who has been imprisoned. This can impact their behaviour and decision making. Children diagnosed with conditions such as ADHD, autism or Asperger’s may also find themselves coming to the attention of the police.

There are a wide range of mental health conditions and disorders which will impact children in different ways, and prosecutors should consider the mental functions of a suspect or defendant, acknowledging that individual conditions or disorders are not always a constant and may fluctuate. Where is there evidence of mental health issues, special educational needs or disorders please refer to the guidance for suspects and defendants with mental health conditions.

Children Looked After (CLA)

Children in the care of the local authority for more than 24 hours are often referred to as Children Looked After (CLA), defined by the provisions of the Children Act 1989. They make up a disproportionate amount of those children who are prosecuted. Children Looked After can be:

• children who are accommodated under voluntary agreement with their parents – section 20
• children who are compulsorily accommodated. This includes children remanded to the local authority or subject to a criminal justice supervision order with a residence requirement – section 21
• children who are the subject of a care order – section 31, or interim care order – section 38;
• children who are the subject of emergency orders for their protection – section 44 and section 46.

From April 2016, sections 20-30 of the Children Act 1989 no longer apply in Cymru - Wales and are replaced by Part 6 of the Social Services and Well-being Act 2014,which extend to the same provisions. 

The term ‘children looked after’ includes unaccompanied asylum-seeking children, children in friends and family placements, and those children where the agency has authority to place the child for adoption. It does not include those children who have been permanently adopted or who are on a special guardianship order. The types of accommodation a child can be placed in under the Children Act 1989 includes, but is not limited to, the following:

• living with a relative, friend or other person connected with the child and who is also a local authority foster carer
• living with a local authority foster carer (who is not a relative, friend or other person connected with the child)
• living in a long-term foster placement
• living in a children’s home; or
• living ‘in accordance with other arrangements made by the local authority’, including independent and semi-independent settings for children who are aged 16 - 17 only, and living arrangements in alternatively regulated settings

The decision to prosecute children looked after for low level offences committed within a children's home is a major decision and should be taken under the supervision of a youth justice specialist with full consideration of the specific and unique circumstances of this group of children. The National Protocol to Reduce the Unnecessary Criminalisation of Looked After Children and Care Leavers (2018) may assist prosecutors with these public interest considerations. This protocol provides a framework to help practitioners reduce criminalisation of CLA and care leavers.

They are vulnerable and at high risk of offending because they may be living in a completely different geographical area away from friends and family, with other children who have been remanded to local authority accommodation. They are often aged between 14-17, deemed to be the peak age range for offending, and may be susceptible to peer pressure to engage in group offending. They may display challenging behaviour and be living within a setting of others displaying challenging behaviour.

Additionally, offences of violence or theft which might not have been reported to the police in a familial setting are more likely to be reported when the children are living away from home. Alternative disposals should be considered before prosecution, where appropriate. These may include restorative justice, reparation, Acceptable Behaviour Contracts and disciplinary measures by the home. Prosecution, caution or conditional caution should only follow if only these outcomes meet the public interest.

To assist prosecutors in their decision-making it is expected that in cases involving CLA the police will provide relevant background information which they will have collated from social services and other agencies detailed within of the child looked after assessment form (CLAA). A prosecutor should also receive a copy of the children’s home behaviour management policy to assist in the decision-making process. If the assessment or the relevant material is not provided prosecutors should escalate the matter through local escalation processes. In 2023 the Youth Justice Legal Centre published the ‘Dare to Care’ Legal Guide. This is a practical guide for the legal profession who deal with care experienced children and provides useful information and questions that should be asked when considering a case involving them as suspects or defendants. That questions may complement, but are subject to, the application of the public interest stage of the Code for Crown Prosecutors.

Adverse Childhood Experiences (ACEs)

The child’s family background may be such that they have been exposed to ACEs such as domestic abuse, substance misuse, relatives known to the Criminal Justice system and consequently display reactionary challenging behaviour. Where offending has taken place within the family home prosecutors should consider the domestic abuse guidance.

ACEs are “highly stressful, and potentially traumatic, events or situations that occur during childhood and/or adolescence. They can be a single event, or prolonged threats to, and breaches of, the young person’s safety, security, trust or bodily integrity” (Young Minds, 2018).

ACEs include, but are not restricted to:

• physical abuse
• sexual abuse
• emotional abuse
• neglect
• living with someone who abused drugs
• living with someone who abused alcohol
• exposure to domestic violence
• living with someone who has gone to prison
• living with someone with serious mental illness
• losing a parent through divorce, death, or abandonment

ACEs can impact a child in various ways including their health and development thus affecting their ability to recognise and manage different emotions, their capacity to make and keep healthy friendships and other relationships, their ability to manage behaviour in school settings and their ability to cope with emotions safely without causing harm to themselves or others.

Behaviour Management policies

When making a review decision concerning an offence alleged to have been committed by a  CLA in a placement or in the wider community, a prosecutor should receive a copy of the children’s home behaviour management policy to assist in the decision-making process.

All children's homes, whether they are run privately or by the local authority or voluntary sector must comply with the Children's Home Regulations 2001, which are mandatory, and the National Minimum Standards, which are issued by the Secretary of State under section 23 Care Standards Act 2000. These are minimum standards, not examples of good practice, and Homes should aspire to exceed them.

Each home should have a clear written policy, procedures and guidance for staff based on a code of conduct that sets out control, discipline and Restrictive Physical Interventions that are permitted and must reinforce positive messages to children for the achievement of acceptable behaviour.

A copy of this policy and a statement from the home setting out how the policy has been applied to this incident should accompany any request for advice on charging.

The consequences of unacceptable behaviour should be clear to staff and children and must be appropriate to the age, understanding and individual needs of the child. It must also be recognised that unacceptable or challenging behaviour may be the result of illness, bullying, disabilities such as Autism Spectrum Disorder (ASD), Attention Deficit Hyperactivity Disorder (ADHD) or communication difficulties.

Standard 22 National Minimum Standards for Children's Homes requires staff to respond positively to acceptable behaviour, and where the behaviour of children is regarded as unacceptable by staff, is responded to by constructive, acceptable, and known disciplinary measures approved by the registered person. Control and disciplinary measures should encourage reparation and restitution. Corporal punishment, deprivation of food and drink and punishing a group for the behaviour of an individual may not be used as a disciplinary measure, and financial penalties are restricted to the imposition of a reasonable sum, which may be paid by instalments, by way of reparation (Rule 17 CHR 2001).

Unless the registered person can show it is inappropriate, the home should also have procedures and guidance on police involvement in the home, which has been agreed with the local police. Staff should know about the agreement with the police and should be clear when the police should be involved (paragraph 22.15 National Minimum Standards for Children).

Special Educational Needs and Disabilities (SEND)

Due regard for a child’s SEND is required when applying the code and throughout the life of a case. Prosecutors are to be aware of the impact SEND has on the child’s ability to engage and communicate and how an unmet need can impact a child’s behaviour and presentation. Information about a child’s SEND can be found on the Children Looked After Assessment (CLAA) and First Time Entrants & Sexual Offending (FTE) checklist and may also be highlighted at any point during the lifecycle of a case.

A child has special educational needs if they have a learning difficulty or disability which calls for special educational provision to be made for them.

A child has a learning difficulty or disability if they

• have a significantly greater difficulty in learning than the majority of other children of the same age, or
• have a disability which prevents or hinders him or her from making use of facilities of a kind generally provided for others of the same age in mainstream schools or mainstream post-16 years institutions

The Equality Act 2010 defines a disability as ‘a physical or mental impairment which has a long-term and substantial adverse effect on their ability to carry out normal day-to-day activities’.

If a child has a SEND, their needs will fall into one or more of the following 4 areas:

Communication and Interaction Needs. Children might:

• struggle to talk or say what they want to 
• find it hard to understand what other people are saying
• find conversations and play confusing or challenging

Cognition and Learning Difficulties. Children might:

• learn at a slower pace than others
• find the curriculum difficult
• struggle with organisation and memory
• have a specific difficulty, for example, in literacy or numeracy

Social, Emotional and Mental Health Difficulties. Children might:

• find relationships difficult
• appear withdrawn or isolated
• behave in ways that affect their learning, for example, being disruptive
• do things that impact on their health and wellbeing

Sensory and/or Physical Needs. Children might have a disability such as:

• a visual and/or hearing impairment
• a physical difficulty.

Offence-specific public interest guidance

Weapons and knife crime

There is separate legal guidance in respect of Offensive Weapons, Knives, Bladed and pointed articles. This guidance contains a section specifically relating to Children and young people in addition to general public interest factors for offences of this type. This also contains the link to the agreed policy between the CPS and the NPCC.

Modern slavery and county lines

Legal guidance on Modern Slavery and County lines legal guidance will assist prosecutors in understanding the particular issues which arise in these cases.

Gang related offending

This can incorporate different offending types including the carrying of knives, drug supply and offences of violence. The legal guidance in respect of decision making in gang related offending also contains a section on Diversion and youths.  

Joint Enterprise

A secondary party is one who assists or encourages a defendant to commit the substantive offence, without being a principal offender. When prosecutors are considering charges against a child as a secondary party, they should refer to the principles set out in legal guidance on Secondary Liability: charging decisions on principals and accessories, paying particular attention to the section about consideration of the defendant’s age and maturity.

Sexual Offences and Child abuse by young offenders

There is a comprehensive section in the Rape and Serious Sexual Offences legal guidance dedicated to Sexual offences and youths including diversion, allocation and sentencing. Prosecutors should refer themselves to this guidance when dealing with allegations of sexual offending committed by or against youths, offending within the family or peer relationship, or by those who were youths at the time of non-recent offending.

Driving offences

There is a broad range of offences that come within the scope of a driving offence, and the police deal with most minor driving offences without reference to the CPS. When dealing with minor traffic offences, prosecutors should carefully consider the impact of a prosecution against the child’s employment and education prospects should their license be revoked, or future insurance refused. Prosecutors should also consider the general principals of the Youth Justice System, the Code for Crown Prosecutors and road traffic offences guidance. Under the Home Office revised guidance on the operation of the fixed penalty system for offences in respect of a vehicle, where a child commits a minor traffic offence, a fixed penalty notice remains an appropriate response for those 16- and 17-years old.

Football related offences

Prosecutors should consult the legal guidance for football related offences and any application for a Football Banning Order.

Firearms

There are specific offences relating the acquisition and possession of firearms by children. These can be found in the legal guidance on firearms.

Diversion from the court process - out of court disposals

Prosecutors, when making charge decisions or reviewing police charged cases, will consider the key principles of the youth justice system outlined earlier and consider whether the case is suitable for diversion.

If the case is suitable to be diverted, it is always preferable that this happens before the case enters the court system. However, prosecutors will advise the police at the point of charge and post-charge if suitable cases have been potentially missed, or if the child subsequently wishes to make admissions an adjournment may need to be requested to allow relevant enquiries to be made. Wherever possible that request will be made prior to the court hearing to prevent the child unnecessarily attending court.

Youth cautions

The police issue youth cautions. They may do so on their own authority, save for cases which could only be tried in the Crown Court in the case of an adult, where the CPS must authorise the decision. The following sets out the principles to be applied when a youth caution is being considered.

Youth cautions are intended to provide a proportionate and effective response to offending behaviour. To qualify for a caution, the statutory criteria  set out in section 66ZA Crime and Disorder Act 1988 must be met, namely the police are satisfied that there is sufficient evidence to charge the child with an offence; the child admits the offence to the police and the police do not consider the child should be prosecuted or given a youth conditional caution for the offence.

The police will take into account the offending history and the seriousness of the offence when deciding whether to issue a youth caution. Offence seriousness is determined by reference to the NPCC Gravity Matrix - the decision-making tool used by police officers to assist in deciding the most appropriate outcome or disposal for children who offend. It sets out the most prevalent offences, and provides a score of 1, 2, 3, 4 or 5. The score may be raised or lowered by one, according to aggravating and mitigating factors which are set out in the Matrix. 

An offence that attracts a gravity score of 3 will usually result in a youth being given a youth caution. If the offending behaviour cannot be satisfactorily addressed by a youth caution, the police will consider a youth conditional caution.

There is no statutory restriction on the number of cautions a child can receive; it is immaterial whether they have received a conditional caution previously and a simple caution is now proposed.

Youth conditional cautions

The police can issue youth conditional cautions for any offence which in the case of an adult would be classified as a summary only or either way offence. However if the offence is one classified as a hate crime or domestic violence a Conditional Caution may only be offered where the offence scores 3 or less on the NPCC gravity matrix. For offences scoring 4 on the NPCC gravity matrix (but not Hate Crime or Domestic Violence) a Youth Conditional Caution may only be offered in the circumstances as set out below. The decision that exceptional circumstances exist in any case may only be made by a police officer not below the rank of Inspector.

Conditions attached to youth cautions can include carrying out community work; undertaking measures to address anger management or substance misuse; writing a letter of apology; victim awareness work and accessing other services. All the conditions are designed to enable the child to take responsibility for the actions, ensure the welfare of the child and prevent further offending. Again, the offences for which a youth conditional caution may be appropriate are determined having regard to the NPCC Gravity Matrix.

Before a conditional caution can be considered, the conditions set out in in section 66B Crime and Disorder Act 1988 must be met. There must be sufficient evidence available to provide a realistic prospect of conviction in accordance with the Full Code Test set out in the Code for Crown Prosecutors. The prosecutor must also be satisfied that a conditional caution should be given to the offender: that the public interest is served by doing so.

Additionally, the child must admit the offence to an authorised person, have the effect of the caution explained to them, be warned that failing to comply with conditions may result in prosecution and sign a document containing the details of the offence, an admission to committing the offence, the conditions of the caution and consent to receiving it. These requirements are separate to the assessment of the evidence in the case and are statutory requirements before a youth conditional caution can be issued.

The main difference is that if a child does not comply with the conditions a prosecution may be commenced for the original offence. This must be explained clearly to the child; if the child is 16 or younger the explanation must be given in the presence of an appropriate adult.

If the conditional caution is found to be an inappropriate disposal, the prosecution must continue. All parties should be made aware that this is the position and best practice may be to announce this in open court at the same time as the application is made for an adjournment.

A more detailed explanation of youth conditional cautions can be found in the Ministry of Justice Code of Practice for Youth Conditional Cautions and for practical directions for prosecutors, please see Youth cautions - DPP guidance.

If the offence is one covered by the Sexual Offences Act 2003, the youth may be subject to the notification requirements in section 80 for a period of 12 months, being half that applicable to an adult offender in accordance with Section 82(2) Sexual Offences Act 2003.

Cautions and conditional cautions after charge

In some circumstances, after a child has been charged with an offence, a prosecutor can invite the court to adjourn a case so that the requisite enquiries can be made, and consideration given to a caution or conditional caution. This includes cases where an admission to an authorised person was not made in interview, pre-charge. If, after review, it is determined that a caution can be given, a clear and unambiguous admission is a statutory requirement prior to the administration of either the simple or conditional caution. If the conditional caution is found to be an inappropriate disposal, the prosecution must continue. All parties should be made aware that this is the position and best practice may be to announce this in open court at the same time as the application is made for an adjournment.

Jurisdiction of the youth court

Diversion may not be appropriate, either on an application of the NPCC Gravity Matrix, or because the statutory criteria are not met, for instance, no admission will be made. When diversion is inappropriate and an offence has been charged, in accordance with Section 46(1) Children and Young Persons Act 1933, unless there is a statutory requirement or compelling reason, cases involving children should be heard in the youth court.

Serious offences can be retained for trial in the youth court, with the power to commit for sentence if necessary conferred by Section 16 Sentencing Act 2020 (for certain serious offences) Section 16A Sentencing Act 2020 (for certain terror offences) and Section 17 Sentencing Act 2020 (for dangerous young offenders). 

The starting point for the statutory requirements is Section 51A Crime and Disorder Act 1998. Addressing each basis for a child to be sent (as set out in section 51A) to the Crown Court in turn:

• cases falling within section 51A(12) must be sent to the Crown Court. They are: homicide cases; prohibited firearm minimum term cases (see section 311 Sentencing Act 2020); minding weapons offences (see section 29(3) Violent Crime Reduction Act 2006. Note that there is no statutory definition of homicide for this purpose but that it should be taken to include murder, manslaughter, causing or allowing the death of a child or vulnerable adult, infanticide, encouraging or assisting suicide and attempted murder (section 2(2)(c) Criminal Attempts Act 1981) but not fatal road traffic offences. See further the Judicial College publication “Youth defendants in the Crown Court”
• cases involving an offence mentioned in section 249(1)(a) or (b) of the Sentencing Act 2020 where the court considers it ought to be able to impose a sentence pursuant to section 251(2). There must be a real prospect of this, and that assessment may best follow a trial, when the court still has the power to commit for sentence pursuant to section 16
• cases where the offence is contained in section 252(1)(a) of the sentencing Act 2020 and the court considers it ought to be able to impose a sentence exceeding two years’ detention similarly require a real prospect of this, and that assessment may best follow a trial, when the court still has the power to commit for sentence pursuant to section 16
• cases where a notice is issued by the prosecutor pursuant to section 51B or 51C of the Crime and Disorder Act 1998 will be rare and the use of this power where a child is concerned should only be for a compelling reason
• cases where the offence is a specified offence (see section 306 Sentencing Act 2020) and the criteria for an extended sentence are met again also require a real prospect of this, and that assessment may best follow a trial, when the court still has the power to commit for sentence pursuant to section 16

Therefore, it is only cases falling within section 51A(12), 51B or 51C where there is no question that the Crown Court is the appropriate venue; otherwise, a compelling reason involving an assessment of whether there is a real prospect of a particular sentence being imposed, including when that assessment is best made, is required. Note paragraph 2.7 of the Sentencing Guideline for Children and Young People:

“In anything but the most serious cases it may be impossible for the court to form a view as to whether the child or young person would meet the criteria of the dangerous offender provisions without greater knowledge of the circumstances of the offence and the child or young person. In those circumstances jurisdiction for the case should be retained in the youth court. If, following a guilty plea or a finding of guilt, the dangerousness criteria appear to be met then the child or young person should be committed for sentence.”

The principles in R (on the application of H) v Southampton Youth Court [2004] EWHC 2812 (Admin) apply:

• the general policy of the legislature is that defendants under 18, and particularly children under the age of 15, should wherever possible be tried in the youth court
• It is a further policy of the legislature that generally speaking, first-time offenders aged 12 to 14 and offenders under 12 should not be detained in custody and decisions as to jurisdiction should have regard to the fact that the exceptional power to detain for grave offences should not be used to water down the general principle. Those under 15 would rarely attract a period of detention and even more rarely those under 12
• In each case the court should ask itself whether there is a real prospect, having regard to their age, that the defendant whose case was being considered might require a sentence of, or in excess of, two years or alternatively whether although the sentence might be less than two years there was some unusual feature which justified the magistrates' court declining jurisdiction

Once the matter is before the Youth Court, if the child then attains the age of 18, no new charges can be laid.

Where the defendant attains the age of 18 after making a first appearance, the court may continue to deal with the case and make any order which it could have made if they had not attained that age – Section 29 Children and Young Persons Act 1963 – or remit the defendant to the adult magistrates' court before trial – section 47 Crime and Disorder Act 1998.

If the child attains the age of 18 prior to the first hearing the matter should be heard by the magistrates’ or Crown court. However, after trial and before sentence the court must remit the offender to a youth court for sentence unless it is undesirable to do so: section 25 Sentencing Act 2020.

Where a child is jointly charged with an adult, they should still be tried separately in the Youth Court unless it is in the interests of justice for them to be tried jointly.

Interests of justice factors can include but are not limited to:

• whether separate trials will cause injustice to witness(es) or to the case (consideration should be given to the provisions of section 27 and section 28 of the Youth Justice and Criminal Evidence Act 1999
• the age of the child; the younger the child, the greater the desirability that they are tried in the Youth Court
• the age gap between the child and the adult; a substantial gap in age militates in favour of the child being tried in the Youth Court
• the lack of maturity of the child
• the relative culpability of the child compared with the adult and whether the alleged role played by the child was minor; and/or
• the lack of previous findings of guilt on the part of the child

See section 46ZA Senior Courts Act 1981 for the obligation on the Crown Court to consider whether to send a person under 18, who has been sent to the Crown Court for trial, back for trial and to give reasons if it does not do so. This is a further opportunity to establish whether statute or the interests of justice, set out above, require a trial in the Crown Court or not.

Effective Participation

The right to a fair trial requires a child to be able to participate effectively in proceedings. It is essential that a child is dealt with in a manner which takes account of their age, level of maturity and intellectual and emotional capacity. Steps must be taken to promote their ability to understand and participate in proceedings.

The youth court is a specialist tribunal which can make adjustments for children who may struggle to participate in the plea or trial process. Chapter 2 of The Equal Treatment Bench Book sets out the vulnerability of young offenders and the duty to adapt normal trial procedures to facilitate their effective participation. 

Where a child is before the Crown Court for trial, reasonable adjustments should be made to enable the child to participate in the trial process, including the removal of wigs and gowns, the appointment of intermediaries, presence of family or quasi family members and special measures, as set out in Criminal Practice Directions 1: General matters specifically section 3G – vulnerable defendants.

What effective participation means

In R (on the application of TP) v West London Youth Court [2005] EWHC 2583 (Admin) minimum requirements for a fair trial for children with learning difficulties were held to be that:

• the child must understand what the alleged wrongdoing is
• the court must be satisfied that the child had the means of knowing that an act or omission was wrong at the time of the act or omission;
• the child must understand what, if any, defences are available
• the child must have a reasonable opportunity to make relevant representations
• the child must have the opportunity to consider what representations to make once they understand the issues involved.

What measures can ensure effective participation

A trial should not be abandoned before all practical steps to overcome the difficulties have been exhausted. Reasonable adjustments available in the youth court to assist a child with learning difficulties to participate effectively in the trial might include:

• keeping a child’s cognitive functioning in mind
• using concise and simple language
• having regular breaks
• taking additional time to explain the proceedings
• being proactive in ensuring access to support
• explaining and ensuring that there is an understanding of the elements of the charges
• explaining possible outcomes and sentences; ensuring that cross examination is carefully controlled, that questions are short and clear, and that frustration is minimised

The court has an inherent power to appoint an intermediary to assist a child to prepare for the trial in advance of the hearing and during the trial. This appointment is not made pursuant to a special measures direction under the Youth Justice and Criminal Evidence Act 1999, but is part of the court’s duty to take such steps as are necessary to ensure that a child has a fair trial, not just during the proceedings, but beforehand: C v Sevenoaks Youth Court [2009] EWHC 3088 (Admin).

A court may make a direction that the child participates by live link if the requirements of section 33A Youth Justice and Criminal Evidence Act 1999 are met.

Determination by the court

It is the court's opinion of the child's level of understanding which must determine whether a trial takes place. The court must be willing, in appropriate cases to disagree with and reject the medical opinion, and to consider the possibility of interpreting medical evidence differently as the trial progresses. The court should consider all relevant evidence, including:

• medical evidence – which is not conclusive
• evidence of what the child is said to have done
• evidence of the child’s behaviour on arrest and in interview
• what the child said in interview
• direct exchange in court between the District Judge or Chair and the child.

The judge has a continuing jurisdiction to stay proceedings for abuse of process if, exceptionally, the child cannot have a fair trial. It is only in exceptional cases that the youth court should exercise its power to stay proceedings before hearing any evidence on the substantive issue. See further, the abuse of process prosecution guidance. The court should consider the steps which can be taken to ensure a fair trial and their efficacy. If it becomes apparent during the hearing that the child is unable effectively to participate, the judge can stay the proceedings at that point based on how the trial has proceeded with these measures in place, rather than at the outset.

The court may at any stage decide to proceed, or switch, to fact-finding proceedings in which the child does not participate and which do not engage Article 6 rights: these proceedings are not a criminal trial. If the court is not sure the child did the act alleged, they are acquitted; if the court is sure, a hospital order or guardianship order may be the appropriate disposal. 

Bail and remand

The presumption of bail in the Bail Act 1976 applies to children as well as adults. So does the need for prosecutors to be satisfied that exceptions are made out and conditions of bail will not allay any concerns if bail is to be opposed. See the CPS guidance on bail.

An application for a remand to youth detention accommodation can only be made when all the alternatives have been considered and it is decided that that they would be inadequate to protect the public from serious harm or to prevent the commission of further offences. Prosecutors should not use the mere existence of an offence or history condition to make an application for a remand to youth detention accommodation. Any remand application will have to cover why bail conditions cannot address the issues raised; what alternatives have been explored or discussed and any other information about the child, their family and their community that has a bearing on the application.

When a child has is remanded by a Court, whether to secure accommodation or into the care of the Local Authority, a Custody Time Limit (CTL) applies. If the child absconds during the custodial remand, the CTL ceases to apply.

When the child is arrested in relation to the absconding, prosecutors must consider on a case-by-case basis the nature of the breach, circumstances of the child and representations from Youth Justice Services in considering whether to make an application to remand the child to secure accommodation or to local authority care. The CTL will not restart, but prosecutors must continue to act expeditiously in review and preparation of the file. 

If the child is charged with new offences and remanded in relation to these, a new CTL will commence.

Reporting restrictions

Under section 49 Children and Young Persons Act 1933, reporting restrictions in respect of defendants under 18 are automatic in the youth court and on appeal from the youth court. The restrictions expire when the defendant attains the age of 18. Section 49 also provides for the circumstances in which reporting restrictions may be lifted. These are:

1. it is appropriate to do so to avoid injustice to the child – section 49(5)(a)
2. it is necessary in order to apprehend a defendant, in certain circumstances only
3. it is in the public interest

An application on this third ground, the public interest, must be exercised with very great care, caution and circumspection. Prosecutors should consider the following points:

• the Youth Court Bench Book guidance
• whether other persons need to be notified, such as the police or the governor of an institution where the defendant is or is likely to be detained, particularly whether they can provide information relevant to risk
• whether the court should pause in making a decision following conviction in order to have the benefit of a pre-sentence report and to know the sentence imposed and whether an appeal is pursued
• the impact on the rehabilitation of the defendant
• the guidance from the cases of McKerry v Teesdale and Wear Justices [2000] WL 546 and Damien Pearl v Kings Lynn Justices [2005] EWHC 3410 (Admin). Here the public interest was in public protection, but was served by partial lifting of reporting restrictions: permitting publication of names but not photographs, addresses or schools. In McKerry the court held:

“it would be wholly wrong for any court to dispense with a juvenile's prima facie right to anonymity as an additional punishment. It is also very difficult to see any place for 'naming and shaming'. The ... criterion that it is in the public interest to dispense with the reporting restriction must be satisfied. This will very rarely be the case and justices making an order under section 49(4A) must be clear in their minds why it is in the public interest to dispense with the restrictions.”

Considerations regarding making an application for reporting restrictions for children under 18 are more likely to arise where children are tried jointly with adults, in the magistrates’ court or Crown Court, or alone in the Crown Court. Such an application can be made on behalf of the defendant under section 45 YJCEA. Relevant considerations as to whether to make or lift such an order may be derived from R on the application of Y v Aylesbury Crown Court, Crown Prosecution Service, Newsquest Media Group Limited [2012] EWHC 1140 (Admin). The prosecution should be in a position to assist the court and to make submissions on such an application, applying this authority and any other relevant authority. Prior to conviction the welfare of the child or young person is likely to take precedence over the public interest. After conviction, the age of the defendant and the seriousness of the crime of which they have been convicted will be particularly relevant.

A breach of reporting restrictions is a summary offence of strict liability. It will almost always be in the public interest to prosecute such offending due to the harm identification can cause to children. Such cases should be handled by a Complex Casework Units.

Sentencing

At sentence the court must have regard to section 44 of the Children and Young Persons Act 1933 and section 37 of the Crime and Disorder Act 1998 (above) and to the definitive guideline for sentencing children and young people which contains comprehensive guidance, including:

• the powers and duties of the court to remit sentence to another court, or to commit for sentence
• the general approach to be taken when sentencing children, and how to determine the appropriate sentence
• which sentences are available for children, including those dependent on their age
• children who cross an age threshold before the date of sentence

Note that in the case of R v ZA [2023] EWCA Crim 596 the Court of Appeal set out a checklist for counsel and courts to follow when sentencing children and young people. The Court emphasised the need to have regard to any applicable youth-specific sentencing guidelines, and to the Criminal Practice Directions, before determining sentence; and, to the need for counsel to take an individualistic approach when submitting prosecution notes.