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9.3.2 Crown Court Cases

AMENDMENT

This chapter was entirely revised and updated in April 2017 and should be re-read in full.


Contents

  1. Introduction  
  2. Legislation 
  3. Section 90  
  4. Section 91
  5. Indeterminate Sentence for Public Protection
  6. Extended Sentences
  7. Jurisdiction and Trial and Sentence
  8. Placement Arrangements – Pre and Post Sentence
  9. Victim Liaison
  10. The Custodial Phase
  11. Release and Early Release Arrangements
  12. Community Supervision
  13. Enforcement
  14. Transitions to Adult Services


1. Introduction

1.1

This document details local practice arrangements for the management of those cases committed to crown courts and liable to long term custodial sentences for grave crimes. It should be read in conjunction with the following

Case Management Guidance Section 7 Youth Justice Board
Placement Review Guidance Youth Justice Board
National Standards for Youth Justice Services 2013 Youth Justice Board
Requesting Additional Licence Conditions Youth Justice Board
Joint National protocol for Transitions in England Youth Justice Board


2. Legislation

2.1 For certain serious offences, often referred to as grave crimes, the crown court may impose longer periods of detention than are available through the Detention and Training Order, up to the maximum that would be available in the case of an adult defendant.
2.2

The statutory provisions governing the long term sentences are contained in:

  • Sections 90 to 92 of the Powers of the Criminal Courts (Sentencing) Act 2000 (which replaced section 53 of the Children and Young Persons Act 1933);
  • Section 224 to 229 of the Criminal Justice Act 2003.


3. Section 90

3.1 Section 90 requires that young people convicted of murder are tried in the Crown court and sentenced to be detained ‘during her Majesty’s pleasure’. This is an indeterminate order which is functionally equivalent to the mandatory life sentence in the case of an adult.
3.2 The relevant age is that at the time that the offence was committed, so where the offender was a child or young person at the time of the offence, the mandatory sentence will be an order under Section 90 even if the he/she has attained the age of 18 prior to trial or conviction.
3.3

Administratively the sentence has two parts:

  • The young person first has to serve a minimum period of detention specified in the tariff. The tariff is set by the court at the point of sentence. The court is required to have a ‘starting point’ of 12 years in determining the minimum term to be served in custody with any departure from that having to be justified by the court;
  • Once the tariff has expired the young person will remain in custody until the Parole Board considers it safe to release him or her into the community under licence. The licence remains in force for life.


4. Section 91

4.1 Section 91 provides for long terms of detention for other ‘grave crimes’ up to the maximum available in the case of an adult.
4.2

In the case of a young person aged 10-17 the offences to which the provisions apply are:

  • An offence punishable in the case of an adult with imprisonment of 14 years or more. (This includes rape, manslaughter, robbery, residential burglary, grievous bodily harm with intent (s18) handling stolen goods);
  • Indecent assault on a man or a woman (the maximum sentence for both these offences in an adult is ten years) including sexual assault, child sex offences, sexual activity with a family member.
4.3

Additionally in the case of a young person aged 14-17 years the following offences would apply:

  • Death by dangerous driving (maximum penalty for this offence in the case of an adult is ten years); or
  • Causing death by careless driving whilst under the influence of drink or drugs (maximum penalty for this offence in the case of an adult is ten years).
4.4

For 16 and 17 year olds certain firearms offences would also merit a section 91 sentence. The minimum penalty would be three years detention unless there are exceptional circumstances which justify an alternative sentence. The relevant offences are;

  • Possessing or distributing prohibited weapons or ammunition;
  • Possessing or distributing a firearm disguised as another object.


5. Indeterminate Sentence for Public Protection

5.1 An Indeterminate Sentence for Public Protection is available where a young person is convicted of a serious violent or sexual offence (defined as one which carries a maximum sentence of ten years).
5.2

Where the court is of the opinion ‘that there is a significant risk to members of the public of serious harm occasioned by the commission of further serious offences’ then the following provisions apply:

  • If the offence carries life imprisonment and the seriousness of the offence warrants it the court must impose a sentence of detention for life under section s91; or
  • If the offence does not carry life, or does so but is not sufficiently serious to warrant a life sentence, and the court considers that an extended sentence (see below) is not adequate to protect the public from serious harm from further specified offences (defined as a sexual or violent offence carrying two years or more in the case of an adult), the court must impose a sentence of detention for public protection. There is no discretion to impose a community sentence where the criteria are satisfied.
5.3 The sentence can last beyond the maximum sentence that would otherwise be available. The court sets a minimum tariff to be served after which release is dependant on the recommendations of the Parole Board. Home Detention Curfew (HDC) is not available.
5.4 The young person remains on licence for life unless, after a minimum qualifying period of 10 years, the Parole Board direct the Secretary of State to order that the licence should cease to have effect.


6. Extended Sentences

6.1

An extended sentence is available where;

  • The young person is convicted of a specified offence (defined as a sexual or violent offence carrying a maximum penalty of two years or more); and
  • The court is of the opinion ‘that there is a significant risk to members of the public of serious harm occasioned by the commission of further specified offences’; and
  • If the offence is also a ‘serious offence’, it does not warrant detention for life or for public protection.
6.2

If these three conditions are satisfied the court must impose an extended sentence of detention which consists of two parts;

  1. The ‘appropriate custodial’ term – which means a period of at least twelve months up to the maximum available as determined by the court; and
  2. An extension period (up to 5 years for a violent offence or 8 years for a sexual offence) during which the young person is subject to licence.

The aggregate of the two parts must not exceed the maximum Custodial Sentence available for the particular offence.

6.3 Release into the community is at the discretion of the Parole Board and can be at anytime between the halfway point of the custodial period and the custodial end date. HDC is not available as an early release option.


7. Jurisdiction and Trial and Sentence

7.1 In cases involving offences caught within the scope of sections 90-91 it is the responsibility of the prosecution and the clerk to the justices to alert the youth court to the possibility that the grave crimes provision may apply. The question of jurisdiction depends on the nature of the offences before the court.
7.2 In the case of murder, other offences of homicide (for example manslaughter, attempted murder, infanticide and genocide) and firearm offences for which minimum sentences apply, the case must be committed to the crown court.
7.3 For all other offences to which Section 91 applies the court must determine whether to refuse jurisdiction and commit to the crown court for trial. The test for determining jurisdiction is whether there is a ‘real possibility’ that a sentence of more than two years in custody is appropriate, irrespective of the powers of the lower court.
7.4 In all cases involving a specified offence (violent or sexual offences carrying a sentence of two years or more) the youth court must consider, at the point of jurisdiction, whether the criteria for an extended sentence or an indeterminate sentence for public protection are likely to be met in the event of a conviction. Where it appears to the court that the criteria are likely to be met it must send the case to crown court. If the youth court retains jurisdiction, it retains the right to commit the young person for sentence at the crown court where as a result of what it hear at the trial, it subsequently forms the opinion that the criteria for an extended sentence or sentence for public protection are met.
7.5 In 2000 the Lord Chief Justice issued a Practice Direction ‘The trial of children and young persons in the crown court’ which contains guidance for the conduct of such proceedings with a view to enhancing the potential for children’s participation. Significant discretion still resides with the court however and the steps to be taken in any given case should take account of the age, maturity and development (intellectual and emotional) of the young person and all other circumstances of the case.
7.6 The YOS, through the responsible officer or remand officer will have a role in ensuring that the court is aware and takes due account of the provisions of the Practice Direction as to the conduct of proceedings, through discussions with the probation staff at the crown court and the defence solicitor as to how the hearing may need to be adapted to meet the particular needs of the young person concerned.
7.7 Considerations relevant to the issue of whether reporting restrictions are imposed should be provided to the defence solicitor. There may be some merit in preparing a written assessment of the young person’s level of understanding to share with the court through the Probation Provider.
7.8 Following a conviction for murder the PSR author should comment on any circumstances that might influence the court to impose a tariff below the 12 year ‘starting point’.
7.9 Where the case involves a firearms offence that carries a minimum sentence, the author should consider if there are any exceptional circumstances to put before the court which might justify an alternative outcome.
7.10 Practitioners should also explore what alternatives there may be to a sentence under Section 91 in the event of a conviction for other grave crimes. Issues may have come to light during the trial and the YOS will have access to the young person’s personal circumstances which may impact on the overall risk assessment and provide substantial mitigation. In such circumstances there may be the opportunity for a well argued report to at the least argue for a reduced custodial sentence or a non custodial sentence where a credible community programme is available.
7.11 Where a young person is convicted of a sexual or violent offence which is contained in schedule 15 of the CJA 2003 as specified or serious, PSR authors will need to be aware of the provisions and provide the court with an assessment of risk from which the court can assess whether the young person is ‘dangerous’ and thus should be sentenced to either an extended sentence or detention for public protection.
7.12 Information relating to the assessment of dangerousness should be included within the ‘Assessment of Risk Section’ of the PSR which in cases of specified offences should be renamed ‘Assessment of Risk and dangerousness’. The PSR author should indicate key risk factors and the appropriate action to manage the risk. When a custodial sentence is the only option available, consideration should be given to a post-custody release plan within the PSR
7.13 Where the young person appears at the crown court by virtue of being jointly charged with an adult no assumption should be made that a lengthy custodial sentence will be the outcome. The offence may not be sufficiently serious to warrant an order under Section 91.
7.14 In all cases it is good practice to liaise with the probation staff at the crown court who should be able to provide advice on recent sentencing outcomes in similar cases involving children and young people of the same age.
7.15 At the point of sentence it is for the court to specify the number of days that have already been served at the point of sentence. Where a section 91 sentence is likely therefore, it will be important that practitioners ensure that the relevant information is available to the court on the day of sentence. Time remanded to local authority accommodation is relevant only where there has been a placement in secure accommodation.


8. Placement Arrangements – Pre and Post Sentence

8.1

All custodial placements are organised through the Youth Justice Board. In broad terms the nature of the placement is dependant on the age of the young person so;

  • Under 12s will be placed in local authority secure accommodation;
  • 12-14s will be placed either in a local authority secure accommodation or in a secure training centre;
  • 15-17 year olds will be allocated to a YOI;
  • Girls and vulnerable 15-16 year old boys may be placed outside prison service accommodation where provision allows.
8.2 All cases where a committal to the crown court takes place should be discussed with the Operational Manager (Courts) to identify likely outcomes if the matter goes to sentence. Issues of vulnerability of the young person should also be reviewed and a decision made as to whether representations should be made with respect to appropriate type of placement. Representations as to vulnerability should be made at an early stage in an attempt to influence the type of accommodation to which the young person will be allocated in the first instance.
8.3 Where a sentence under section 90/91 appears likely the YOS must give notice to the Prison Service section 53/92 Casework Unit as well as the Youth Justice Boards Placement Team. The placement information module of assetplus should be completed and sent to the placements team at the YJB (via connectivity if possible)at least 24 hours in advance of the sentencing date. The document should be no older than 7 days old at point of being sent. This module provides the YJB Placement Service with the key information necessary to make an appropriate placement allocation.
8.4

Placement Team Tel: 0845 3636363

Section 92 casework Unit
Tel: 0207 217 5909/5245
Secure email address YJBPlacements-London@yjb.gsi.gov.uk.cjsm.net
8.5 Wherever possible the PSR author or a representative of the YOS should attend the crown court for the sentencing.
8.6 Once the outcome of the court case is known the Placement Team at the YJB must be contacted immediately. This should be by phone initially with any risk of harm or vulnerability concerns highlighted.
8.7

Following sentence the young person must be interviewed in the cells by the YOS officer court duty officer, or responsible officer, with particular emphasis on risk assessment. The post court report module of Assetplus should be completed and sent to the YJB placement team via connectivity if possible.

8.8 Where particular concerns have been identified the security staff at court must be notified and this recorded on the custody record. The reception centre of the establishment must be contacted and advised by phone of the specific issues and concerns identified. These contacts should also be recorded on Careworks.


9. Victim Liaison

9.1 Victims of serious sexual and violent offences, where the offender is sentenced to 12 months or more in prison, have the right to receive information and consultation from the Probation Provider. In the London Probation Area this service is provided by specialist Victim Liaison staff.
9.2 Where the sentence is made in the crown court it is the responsibility of the probation staff at the court to forward on this information.
9.3 If the victim does choose to take up this service from Probation the YOS will be notified. It will then be the responsibility of the responsible/supervising officer to provide information on key events throughout the sentence such as the release date and the area where the young person will be living to the Victim Liaison Service. The victim will also be given the opportunity to comment on licence conditions.


10. The Custodial Phase

10.1 The supervising officer must visit both the young person and the parents/carers, where appropriate, within five days of sentence.
10.2 The Supervising officer must attend an allocation board scheduled to take place within 20 days reception for those young people sent to Prison Service establishment, attend the first month’s review, all subsequent reviews and participate fully in sentence planning.
10.3

The central aim of sentence planning is:

  • The prevention of further offending when the young person is released;
  • To achieve this, those needs that influence the young person’s behaviour must be addressed over the whole course of the order in an integrated and seamless way.
10.4

The supervising officer must work proactively to ensure:

  • That the plan is appropriate to the young person’s needs and the level of risk that they present to the community;
  • That the elements that present the greatest risk to the community are dealt with as a priority in the custodial part of the sentence where possible;
  • That targets are clear, achievable and measurable, and placed within a timetable for completion;
  • That health, education and accommodation needs on transfer are addressed from the beginning of the sentence;
  • That the plan provides the young person with a realistic opportunity for the young person to qualify for early release by his/her efforts (where eligible);
  • That action required by other parties is recorded.
10.5

The supervising officer must visit the young person at least every three months and at least monthly for the three months prior to the planned release date. The officer must contact the family/carer after each visit where the parent(s) have not attended (NS).


11. Release and Early Release Arrangements

11.1 For those young people serving a determinate sentence under s91, conditional release will be at the half way stage of the sentence and may be subject to licence conditions to the end of the sentence. There are standards conditions which must be contained within the licence and a list of prescribed conditions that can be included depending on the individual circumstances of the case.
11.2 Under the Home Detention Curfew (HDC) scheme, Section 91 prisoners, who are not subject to any statutory exclusions and who pass a risk assessment, may be released up to 135 days early (depending on the sentence length) under an electronic curfew. Young people who are eligible are presumed suitable for release subject to a satisfactory home circumstances report unless there are exceptional and compelling reasons to refuse release. However, because of the nature of their offences very few section 91 offenders will be eligible for the presumptive scheme. Offences which would exclude them include sexual and other serious assaults.
11.3

The actual period to be spent on curfew depends on sentence length and is defined by the ‘requisite period’

Sentence length Requisite Period to be
served before HDC is
available
Curfew Periods
3 months or more but less than 4 months. 30 days. Between 15 and 30 days depending on sentence length.
4 months or more but less than 12 months. One quarter of the sentence. Between 30 and 90 days depending on sentence length.
Between 12 months and under 18 months. One quarter of the sentence. Between 90 and 135 days depending on sentence length.
Over 18 months. 135 days less than half the sentence. 135 days.

11.4

Young people released early will be electronically monitored for the duration of the early release period (i.e. until the mid point of the sentence) thus certain conditions must be satisfied before early release can be agreed;

  • It must be practical to install the required equipment at the release address;
  • Consent to the installation must be given by the responsible adult (for those under 16) and by the householder at the given address if this is a different person from the responsible adult.
11.5 Applications for HDC for young people at secure training centres or local authority secure accommodation must be sent to the juvenile operational management group in prison service headquarters 6 weeks before the HDC release date.
11.6 If the young person is in a YOI, the recommendation goes to the governor who has delegated powers from the Home Secretary.
11.7 Where the young person is serving an indeterminate sentence for public protection or an extended sentence the supervising officer must ensure that all risk assessment information is passed to the Parole Board to assist them in determining whether it is safe to release the young person into the community or terminate their licence.


12. Community Supervision

12.1 In the case of all life sentences (mandatory or discretionary) and indeterminate sentences for public protection, the supervising officer must ensure that all relevant paperwork, including an up to date Assetplus and sent to the Lifer Review and Recall section (LRRS) of Her Majesty's Prison and Probation Service.
12.2

Upon release the supervising officer must see the young person on the day of transfer to the community to;

  • Ensure the young person understands the requirements of their licence;
  • Commence the programme of community supervision. 
12.3 A home visit will take place within 5 days of transfer to the community to ensure that the young person is living where planned. The supervising officer should use this as an opportunity to involve the young person’s family in the work. Copies of the licence and any plans should be provided to parents/carers. The young person and their carers should also be informed of the enforcement process and the likely consequences should the licence be breached.
12.4

The supervising officer, or his/her representative, will see the young person twice weekly for the first three months of the licence and then at least once every 10 days until the end of the licence period. Throughout the period of supervision in the community the officer should monitor;

  • Accommodation;
  • Education/training – education should be at least 25 hours per week. Where this is not provided the YOS Manager must be advised. For young people over school leaving age the supervising officer must ensure that links are developed with the Personal Adviser;
  • Health needs and whether the planned services are being provided. Where they are not the YOT manager must be advised.
12.5

A review meeting should take place within 10 working days of transfer to the community, chaired by the supervising officer. The young person is expected to attend. A member of the secure facilities staff must attend the review along with those invited to attend reviews during the custodial phase. The parent/carer(s) should also be encouraged to attend and participate. The custodial caseworker must be invited to attend. The meeting should;

  • Review the training plan in light of the updated Assetplus assessment;
  • Ensure the intervention programme has commenced.
12.6 Young people released on an indeterminate sentence for public protection will be on an indefinite period of licence, which is likely to be for a considerable time. Similarly those on extended sentences will be subject to lengthy licence periods Effective case management and risk management procedures will need to be put in place by the YOS until such time as the licence is terminated by the Parole Board or the young person is transferred to the Probation Provider.


13. Enforcement

13.1 If the young person fails to attend for an appointment or breaches an electronic curfew the supervising officer should telephone or visit the young person immediately. On the basis of the information given the supervising officer must review the case within one working day to decide what action should be taken and record the decision on the case file.
13.2

Where there is persistent failure to comply or an enhanced risk of harm to self or community, the supervising officer must review the case with the Operational/YOS manager and;

  • For those serving less than four years invoke breach proceedings;
  • For those serving four years or more report the matter to the section 91 staff at the prison service Management Group for possible recall to prison.

14. Transitions to Adult Services

See also Joint National Protocol for Transitions in England.

14.1 By virtue of being long term sentences, many young people receiving S91/92 sentences will turn 18 during the life of the sentence. If they are still serving the custodial component of the sentence they will transfer to an adult secure establishment. The case will also be transferred from the YOS to the Probation Service.
14.2

Preparing young people for the changes in moving from the youth to adult systems needs to be considered in the sentencing planning process. Parents/carers will also need to be prepared particulalry as their rights by virtue of having parental responsibility will change significantly as their child becomes a legal adult.

End