When should a Crown Court Remit For Sentence

The case of R v S [2021] highlights and clarifies the powers of Crown Court judges to remit matters to the Youth Court for sentence and/ or sit as a District Judge and therefore enable themselves to impose Referral Orders when sentencing children.  


This case principally deals with a Crown Court Judge's failure to remit a matter to the youth Court and/or sit as a District judge and so enable himself to impose a Referral Order on a child. 

The Court of Appeal subsequently reviewed the defendant's appeal, which rested on two grounds:

  1. 'The judge erred in refusing to remit the appellant's case to the youth court and/or to exercise his discretion to sit as a district judge so that a Referral Order could be imposed' and, alternatively,
  2. the length of the Youth Rehabilitation Order was manifestly excessive'.

The appellant, aged 17 at the time of proceedings, was involved in two burglaries with two other adult offenders, one of whom was his father. Thus, pursuant to s.51(7) of the Crime and Disorder Act 1998, the appellant was tried before the Crown Court instead of the Youth Court. The appellant entered guilty pleas and was bailed pending a pre-sentence report (PSR).  The Youth Justice Service prepared a PSR which outlined the appellant's lack of previous convictions and good character.  Based on these facts, the conditions for a mandatory Referral Order under section 85 Sentencing Act 2020 were satisfied. 

This judgement highlights s.25(2) Sentencing Act 2020 which requires that where a child or YP has been sent for trial to the Crown Court under the CDA 1998, s.51 or 51A and s/he is then convicted, the Crown Court is under a duty to remit the case to the youth court unless satisfied it would be undesirable to do so.  Should a Crown Court Judge feel they are best placed to sentence the child before them, they are able to use their powers under s.66 Criminal Courts Act 2003 to sit as a Youth Court District Judge and impose a Referral Order (or other Youth Court sentence). In this instance, the judge refused to utilise both of those powers stating that Referral Orders were not within the powers of the Crown Court and that remission to the Youth Court was not 'an order that was available to [him]'. Instead, the judge sentenced the appellant to a Youth Rehabilitation Order for two years.

The appellant took this matter to the Court of Appeal.  The Court of Appeal noted that the first instance judge appeared unaware of the extent of his powers and could, and indeed should have, either sat as a District Judge of the Magistrates' or Youth Courts and sentenced the child in question to a Referral Order or alternatively remitted the case to the Youth Court.

The Court of Appeal confirmed that the mandatory Referral Order requirements were satisfied here, namely:

The Court of Appeal stated that this should have been a 'powerful consideration - in determining whether to exercise the power to remit and/or to sit as a DJMC' {para 28}. Accordingly, the two-year Youth Rehabilitation Order was quashed on the basis that it was disproportionate and remitted the case to the appellant’s local Youth Court.


This case is an important reminder that Crown Court Judges are not always familiar with the specific law and procedure applicable to children in the criminal justice system.  Therefore, practitioners are urged to be on guard in these situations and prepared to highlight the relevant law and guidance. 

Crown Courts should follow the Sentencing Children and Young People Overarching Principles Guideline when sentencing children.  This Guideline sets out the power to remit children to the Youth Court for sentence at paragraph 2.15.  It also specifically cautions: “Particular attention should be given to children and young people who are appearing before the Crown Court only because they have been charged with an adult offender; referral orders are generally not available in the Crown Court but may be the most appropriate sentence.”

Crown Court Judges’ powers to remit matters to the Youth Court and, where appropriate, sit as a District Judge themselves in order to pass Youth Court sentences represent critical protections for children. 

Amir Aliyev

Volunteer paralegal

Youth Justice Legal Centre