Judicial guidance has been issued in respect of the allocation exercise to be considered when a child appears in the Magistrates’ Court jointly charged with an adult or adults. The guidance reinforces the overarching principle that, wherever possible, children should be tried in the Youth Court, unless it is in the interests of justice for the child and adult to be tried jointly. The note sets out the guidance which is to be applied in cases where the interests of justice test falls to be considered, and highlights that the impact of delays caused by the Covid-19 pandemic is an additional factor which may weigh in favour of children being tried separately in the Youth Court.
The note restates guidance provided by the Sentencing Council both in the allocation guideline within the Magistrates’ Court Guideline and in the Guideline for Sentencing Children and Young People which lists the following factors to be considered when applying the interests of justice test:
- Whether separate trials will cause injustice to witnesses or to the case as whole
- The age of the youth
- The age gap between the youth and the adult
- The lack maturity of the youth
- The relative culpability of the youth
- The previous convictions of the youth
Additionally, the guidance notes that the Youth Court now has the power to commit for sentence which can permit the Crown Court to sentence children and adults who have been tried separately, in appropriate cases.
The purpose of the note is to ensure that when considering the interests of justice test, the Court also takes into account the situation caused by the Covid-19 pandemic. The impact of the pandemic on the criminal justice system has resulted in a significant, and ever increasing, backlog of trials in the Crown Court. This is even more problematic as the pandemic means that the Courts’ ability to try cases involving more than one defendant is severely restricted. Cases involving children jointly charged with adults by definition involve more than one defendant, and frequently involve more than two defendants. Although there is a backlog of cases in the Youth Court, it is not nearly so significant. These specific circumstances may weigh in favour of separate trials for children charged jointly with adults as the disadvantages of the delay in trying the child or children may outweigh any injustice caused by separate trials.
This guidance, whilst fairly specific in its application, is extremely important when considering the position of children jointly charged with adults in the current climate. It must be noted, however, that this guidance has been issued following the recent case of R (on the application of BB) v West Glamorgan Youth Court which noted that the interests of justice test applies only in cases where children are jointly charged with adults, and not, as in that case, where a child is jointly charged with other children who have been sent to the Crown Court for trial.
In the case of R (on the application of BB) v West Glamorgan Youth Court the Administrative Court quashed the decision to send BB to the Crown Court to be tried with his co-accused, finding the reasoning for doing so flawed in itself, separately from the point that the interests of justice test was inapplicable. This highlights the need for careful consideration of the allocation exercise in the Youth Court and a thorough awareness of the relevant guidance in order to avoid children unnecessarily being sent to the Crown Court for trial.
Given the lengthy delays to Crown Court trials, there is a substantial risk that many children whose cases have been sent to the Crown Court face the prospect of spending a significant proportion of their lives awaiting trial, whilst also potentially subject to significant restrictions to their liberty. Many young people awaiting trial will also face the prospect of crossing a significant age threshold before their case is heard and/or sentenced resulting in even more unfavourable outcomes. Given that the Lord Chief Justice has also raised concerns about the current delays, noting that “longer it takes for a case to come to trial, the more likely it is that something will go wrong with it” the allocation exercise has never been a more important consideration for youth practitioners.
Written by Vivien Cochrane, Senior Associate, Kingsley Napley