When deciding whether to prosecute a young person, what factors will the CPS take into account?
The statutory provisions:
The key considerations governing the decisions made by the CPS in dealing with children and young people are those contained in statute:
- Section 44 of the Children and Young Persons Act 1933, which requires the courts to have regard to the welfare of a young person – ‘the welfare principle’
- Section 37 of the Crime And Disorder Act 1998, ‘the principal aim’
which provides that:
‘(1) It shall be the principal aim of the youth justice system to prevent offending by children and young persons.
(2) In addition to any other duty to which they are subject, it shall be the duty of all persons and bodies carrying out functions in relation to the youth justice system to have regard to that aim.’
The Crown Prosecution Service Code of Conduct
In any prosecution the prosecutor has to consider the ‘evidential test’ (is there sufficient evidence to support a realistic prospect of actual conviction of the charge?) AND the ‘public interest’ test (is it in the public interest to prosecute even if there is sufficient evidence?).
In addition where the person charged is a child (10-14) or young person (15-17)
- The Code for Crown Prosecutors states that Crown Prosecutors must consider the interests of a youth, amongst other public interest factors, when deciding whether a prosecution is needed.
In applying these considerations, the CPS Legal Guidance on Youth Offenders (‘the CPS Guidance’) states that Crown Prosecutors will have regard to their obligations arising from the European Convention on Human Rights, the United Nations 1989 Convention on the Rights of the Child and the United Nations 1985 Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules).
In terms of the decision to prosecute, the CPS Guidance states the following:
‘A decision whether to prosecute a youth offender is open to judicial review if it can be demonstrated that the decision was made regardless of, or clearly contrary to a settled policy of the DPP. See R v Chief Constable of Kent and Another ex parte L, R v DPP ex parte B  93 Cr App R 416. The court held that an application for judicial review could be successful if the decision to prosecute was made without any or sufficient inquiry into the circumstances and general character of the accused. This judgment highlights the importance in appropriate cases of obtaining sufficient information about the youth’s home circumstances and background from sources such as the police, youth offending service, children’s services before making the decision whether to prosecute.’
It is often necessary for the defence practitioner to make representations to the CPS using their guidance on youth cautioning to divert the child or young person – this can be done at any stage in the proceedings though the earlier it is done the better. Often if the child refuses to make admissions in the police station the prosecution will say they have ‘lost their chance’ but it would be unfair to punish a child if they were advised not to make admissions by a solicitor or their appropriate adult because the it was unclear that the evidence was sufficient to prosecute or because the option of a caution or diversion had not been clearly explained to them.
Often it is unclear whether an admission will lead to diversion and the solicitor may well be negligent if they advised a client to make an admission in those circumstances. There is a need for a agreed without prejudice procedure in the police station to facilitate this but until this is agreed nationally there will be confusion as to what was offered by the police and what the child was willing to admit.
It is essential in all youth offender cases to ensure that all of the public interest matters which give rise to the decision are clearly identified, considered and balanced. A note of the factors identified but rejected or outweighed by other considerations should be made. This demonstrates that the decision to prosecute was taken only after a full review of the case and the background information, including that concerning the suspect provided by the youth offending service, police or local authority. Failure to show that the legal guidance has been considered and all factors for and against may lead to a successful challenge to the exercise of discretion by way of judicial review if their guidance is not followed and properly applied to all the information on the case may result in the decision to prosecute being quashed. See R (on the application of E,S and R v DPP  EWHC 1465 (Admin).
Therefore, if a prosecutor refuses to provide a proper reasoned decision ask to why it is not suitable to divert a child who is eligible, the defence solicitor should ask for an adjournment of the proceedings to make full written submissions and for the Crown Prosecution Service (CPS) to address them fully. If the CPS fail to do so the defence lawyer can commence a judicial review challenge to that decision if it is irrational, unreasonable or procedurally flawed. Generally the Magistrates Court should adjourn the trial until the higher court has reviewed the decision. If the lower court refuses an adjournment there is jurisdiction to challenge that decision in the High Court before any trial in the Youth Court see R (on the application of DPP) v Manchester & Salford MC  EWHC 3719 (Admin).
In addition an application can be made to stay the proceedings in the Youth Court as an abuse of process. The principles of abuse were summed up in Crawley  EWCA Crim 1028. There are two types – where a fair trial is not possible or where a trial would be unfair.
In the second case if the police promised a diversion and the defendant admitted their guilt it will arguably be an abuse of process to go back on that promise as the State should be held to their promises see R v Croydon Justices Croydon Justices, ex parte Dean  QB 769, Staughton LJ said that ‘the prosecution of a person who has received a promise, undertaking or representation from the police that he will not be prosecuted is capable of being an abuse of process’
Another example is the case of R v Bloomfield  1 Cr App R 135. Where the prosecution indicated they would drop a case but later told the defence that there had been a change of mind. The Court of Appeal agreed that allowing the prosecution to go ahead amounted to an abuse of process whether or not there was prejudice to the accused as it would bring the administration of justice into disrepute.
Depending on the stage in the proceedings, once the defendant reaches the age of 18, the Youth Court may have no jurisdiction. Therefore, if a young person attains the age of 18 before their first appearance in court, the case must be transferred to the adult magistrates’ court. No new charges can be laid in the youth court after the defendant attains the age of 18, including alternative charges and charges based on the facts and charges already before the court (R v Chelsea Justices ex parte DPP  3 All ER 65.) Where a defendant reaches 18 after making their first appearance, the court may:
- Continue to deal with the case and make any order which it could have made if he had not attained that age : section 29 Children and Young Persons Act 1963;
- Remit the defendant to the adult magistrates’ court before trial (section 47 Crime and Disorder Act 1998) for trial or after trial and before sentence (section 9 Powers of Criminal Courts (Sentencing) Act 2000.)
The defendant cannot elect trial on indictment if he attains 18 after entering a plea to an indictable only (R v St. bans Juvenile Court ex parte Turner (1985) 149 JPY 6) or either way offence (R v West London Youth Court ex parte Siley Windette  CLR 926) as by taking a plea, the youth court has accepted jurisdiction.
The statutory provisions for sentencing also refer to the age of the defendant on conviction. Such age will be deemed to be that which it appears to the court to be after considering any available evidence: section 164(1) Powers of the Criminal Courts Act 2000. The sentence or order will not be invalid if it is subsequently established that the defendant is in fact a different age that makes him or her ineligible for such a sentence: R v Brown  CLR 750. The Court should consider any evidence of age that is available at the hearing of the case. Where there is a dispute as to age which is material, it is better for the court to adjourn for more detailed inquiries if there is any doubt about the matter: R v Steed 1990.
Where a defendant turns 18 during any proceedings (in the Youth Court or the Crown Court) there is an ambiguity as to what sentencing regime they should be subject to – R v Ghafoor (Imran Hussain)  EWCA Crim 1857; R v Bowker (Anthony)  EWCA Crim 1608; R v Yarrow (Assad) EWCA Crim 1175 these cases suggest that age at date of offending is significant but not determinative so it may need to be argued
The most important source material for sentencing is the Sentencing Council’s Sentencing Children and Young People: Definitive Guide, these highlight the whole range of considerations that are relevant to sentencing children and young people.
And in case the judge is reluctant to take them into account you should remind them that there is a statutory requirement to follow the applicable guideline – see section125 Coroner & Justice Act 2009.