The Crown Prosecution Service (CPS) has published revised guidance on children as suspects and defendants. Published on 13 July 2023, the guidance has been updated to incorporate all recent policy, legislative and terminology updates within the Youth Justice System.
The key updates to the guidance are as follows:
- Updated and clarified prosecutor roles
- Updated Evidential Considerations – This section has been updated to include the defences of duress and s.45 of the Modern Slavery Act 2015. This reflects the prevalence of cases involving child criminal exploitation and CPS recognition that exploited children should not be criminalised.
- Updated Public Interest considerations – In addition to the public interest factors contained within the Code for Crown Prosecutors, prosecutors should take into consideration the individual circumstances of the child or young person when determining whether it is in the public interest to prosecute. Prosecutors should have regard to a young person’s physical and mental health, whether they are a looked after child, have special education needs or disabilities as well as any adverse childhood experiences.
The guidance emphasises that making a decision to prosecute a child or young person for an offence committed in a children’s home, or placement, is a ‘major decision’ and sets out the steps that should be taken by prosecutors when making such decisions. Alternative disposals such as acceptable behaviour contracts should be considered first and a formal out of court disposal , or prosecution, should only follow where it is the public interest. This should mean that in practice, children and young people appearing before the Youth Court for such offences will be the exception, rather than the norm.
- Prosecution, caution or conditional caution should only follow if only these outcomes meet the public interest.
- Effective Participation – This section has been restructured and confirms the importance of using ‘child first’ language.
- Jurisdiction of the Youth Court – The CPS has made its policy on jurisdiction clear within the guidance. Unless there is a statutory requirement or other compelling reason, cases involving children and young people should be heard in the Youth Court.
- Diversion and out of court disposals – Where possible, cases that are suitable for diversion should be diverted before the case enters the Court System to avoid young people having to attend Court unnecessarily. Where a young person has been charged but they wish to make admissions, cases should be adjourned for consideration of an out of court disposal.
Reporting Restrictions – The guidance now contains the key information on reporting restrictions in one place.
This long-awaited update is the biggest revision of the CPS legal guidance relating to children since 2019. It is positive to see the CPS commitment to a child first approach and a clear focus on prosecutors having the requisite knowledge and training before making decisions in cases involving children and young people. The recent research conducted by the YJLC and the Institute for Crime and Justice Policy Research stresses the importance of children and young people receiving quality representation. It is just as important that prosecutors have sufficient training and knowledge to make effective decisions when it comes to children and young people. From a practical approach, the updated guidance will be a useful tool for lawyers making representations to the Crown Prosecution Service for an out of court disposal or on public interest grounds.
Sabrina Neves, Solicitor at GT Stewart Solicitors