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New Allocation guideline

The Sentencing Council have published the Definitive Allocation guideline following their consultation. The new guideline will come into force on 1 March 2016. The new guideline makes it clear that children should be tried in the youth court wherever possible and this will usually require separate trials for children and adults.

Details

The Sentencing Council have published the Definitive Allocation guideline in accordance with section 122 of the Coroners and Justice Act 2009. This guideline should provide greater clarity for courts dealing with children jointly charged with adults:

Youths jointly charged with adults – interests of justice test

The proper venue for the trial of any youth is normally the youth court. Subject to statutory restrictions, that remains the case where a youth is charged jointly with an adult.This guideline does not provide information on the complex statutory framework for dealing with a youth jointly charged with an adult: consult your legal adviser for advice.

The following guidance must be applied in those cases where the interests of justice test falls to be considered:
1. If the adult is sent for trial to the Crown Court, the court should conclude that the youth must be tried separately in the youth court unless it is in the interests of justice for the youth and the adult to be tried jointly.

2. Examples of factors that should be considered when deciding whether it is in the interests of justice to send the youth to the Crown Court (rather than having a trial in the youth court) include:

  • whether separate trials will cause injustice to witnesses or to the case as a whole (consideration should be given to the provisions of sections 27 and 28 of the Youth Justice and Criminal Evidence Act 1999);
  • the age of the youth: the younger the youth, the greater the desirability that the youth be tried in the youth court;
  • the age gap between the youth and the adult: a substantial gap in age militates in favour of the youth being tried in the youth court;
  • the lack of maturity of the youth;
  • the relative culpability of the youth compared with the adult and whether the alleged role played by the youth was minor;
  • the lack of previous convictions on the part of the youth.
3. The court should bear in mind that the youth court now has a general power to commit for sentence following conviction pursuant to Section 3B of the Powers of Criminal Courts (Sentencing) Act 2000 (as amended). In appropriate cases this will permit the same court to sentence adults and youths who have been tried separately.”

The new Definitive Allocation guideline is in force from 1 March 2016 and applies to all defendants in the magistrates’ courts (including youths jointly charged with adults) whose cases are dealt with on or after that date.  It also applies to allocation decisions made in the Crown Court pursuant to Schedule 3 of the Crime and Disorder Act 1998.

 

Commentary

YJLC reponded to the consultation and are pleased to see some of our comments have been incorporated into the new definitive guideline.