A child who is accused of committing a crime with an adult (someone aged 18 or over). (see adult co-defendant)
What this means
A child who is charged with an adult will go to a magistrates’ court (rather than the youth court) for their first appearance. Serious cases may then move to the Crown Court. Sometimes a child’s case can be separated from an adult’s. This is called severance.
The law says that children should be tried and sentenced in the youth court wherever possible.1 Where a youth and an adult are jointly charged, the youth must be tried summarily unless the court considers it to be in the interests of justice for both the youth and the adult to be committed to the Crown Court for trial.
Examples of factors that should be considered when deciding whether to separate the youth and adult defendants include:
- whether separate trials can take place without causing undue inconvenience to witnesses or injustice to the case as a whole;
- the young age of the defendant, particularly where the age gap between the adult and youth offender is substantial;
- the immaturity of the youth;
- the relative culpability of the youth
- compared with the adult and whether or not the role played by the youth was minor;
- and the lack of previous convictions on the part of the youth.2
In cases where a child has an adult co-defendant the court should decide to sever (separate) the cases so the child can be tried in the youth court (or in serious cases have a separate trial in the Crown Court).
If a vulnerable defendant, especially one who is young, is to be tried jointly with one who is not, the court should consider at the plea and case management hearing, or at a case management hearing in a magistrates’ court, whether the vulnerable defendant should be tried on his own, but should only so order if satisfied that a fair trial cannot be achieved by use of appropriate special measures or other support for the defendant. If a vulnerable defendant is tried jointly with one who is not, the court should consider whether any of the modifications set out in this direction should apply in the circumstances of the joint trial and, so far as practicable, make orders to give effect to any such modifications.5
Where a young person is convicted before the Crown Court of an offence other than homicide, there is an obligation to remit (return) the young person to a youth court for sentence unless that is “undesirable”.6
- 1. Paragraph 12.1 Overarching Principles: Sentencing Youths, Sentencing Guidelines Council, November 2009. [Courts must follow any sentencing guideline unless it would be contrary to the interests of justice to do so, Section 125(1) of the Coroners and Justice Act 2009]
- 2. Allocation Guideline, Effective from 1 March 2016
- 3. Section 44 Children and Young Persons Act 1933 ‘Every court …shall have regard to the welfare of the child or young person..’ & Article 2 of the UNCRC (United Nations Convention on the Rights of the Child) 19 ‘the best interests of the child shall be a primary consideration’.
- 4. Sentencing Children and Young People - Definitive Guideline 2017 [Courts must follow any sentencing guideline unless it would be contrary to the interests of justice to do so, Section 125(1) of the Coroners and Justice Act 2009]
- 5. Paragraph 3G.1 The Consolidated Criminal Practice Direction, 2015 as amended
- 6. Paragraph 2.15 Sentencing Children and Young People - Definitive Guideline 2017