The Act has introduced significant changes that affect the youth justice system, particularly around:
remands of children (otherwise than on bail)
out of court disposals
rehabilitation of offenders.
For offences committed after 3 December, 2012
Courts will have more discretion to conditionally discharge a young person who pleads guilty to their first offence instead of giving a referral order.
The Act allows for repeated use of referral orders (i.e. it removes the current restriction) in line with the commitment in the Breaking The Cycle green paper to increase the use of restorative justice.
Breach of a Detention and Training Order (DTO)
Breach proceedings can now be brought to court even after a DTO has finished (a summons or a warrant must be issued while the DTO is still in force).
The court retains the power to impose a period of detention in response to a breach of a DTO, and gains a new power to impose a period of supervision instead of custody for the breach. The maximum period of supervision or detention will be three months or the period beginning with the date of the failure to comply with the requirement and the last day of the term of the DTO, whichever is the shorter.
Where the court imposes a period of custody or supervision for breach, it takes immediate effect and can run concurrently with a period of supervision under the DTO. Also, if a young person continues to breach the DTO, the court can impose a further period of supervision (or custody or a fine) and this continues to be the case until the young person completes the order.
Youth Rehabilitation Order (YRO)
YRO Curfew Requirements: The new provisions can be applied to YROs made after 3 December regardless of whether the offence was committed before or after this date. The number of hours a curfew can be imposed is increased from 12 to 16 hours per day, and the length from 6 to 12 months.
YRO Mental Health Treatment Requirement: The new provisions apply to all MHTRs made after 3 December regardless of whether the offence was committed before or after this date.There is no longer a requirement for evidence from a medical practitioner, approved for the purposes of section 12 of the Mental Health Act 1983.
YRO duration: The new provisions apply to all YROs made after 3 December. The YRO can end once all the requirements of the order have been completed. This resolves the issue where the requirements of an order are completed, but the order itself has not reached its end date (which currently means returning to court and seeking a revocation of the YRO).
The end date of a YRO can be extended by up to six months, where the requirements of the order have not been completed. This can only be done once.
YRO Fine: for breach applies to breaches (not the breach hearing) that take place after 3 December. The maximum fine for breach is increased to £2,500, instead of the current limits set at £250 for under 14 year olds or £1,000 for those over 14. There is no change to the requirement for courts to take into consideration the means of the offender when setting an appropriate fine.
Remands of children otherwise than on Bail
The Act aims to reduce the use of secure remand for children and young people.
The current, complex remand arrangements will be simplified into a 'single remand framework'.
The costs of keeping a young person in custody on remand will be transferred to local authorities, in order to provide an incentive to use remand more sparingly.
The status of 'looked after child' will apply to all young people on remand.
A charged/convicted young person must meet one of two conditions - or 'tests' - before they are remanded into custody:
seriousness of the offence - the offence must be either a violent or sexual offence, or one that, if committed by an adult, is punishable with a sentence of imprisonment of fourteen years or more (this is an existing test)
'realistic prospect' of receiving a custodial sentence - the young person must have a history of committing offences or absconding while on remand
17 year olds can now be remanded in a secure children's homes or secure training centres, not just young offender institutions. (The Act has defined a child as a person under the age of 18).
If the young person is remanded to local authority accommodation, the local authority (designated by the court) must receive the young person and provide/arrange suitable accommodation for them (as per the duties of a local authority to place a child that is remanded as set out in section 22C of the Children Act 1989).
A court can impose conditions on a child remanded to local authority accommodation similar to conditions that can be imposed on a child remanded on bail. The court can also 'impose requirements' on the local authority to make sure these conditions are adhered to, eg by using electronic monitoring.
Out of court disposals
The Act will simplify and reduce the number of out of court disposals for young people. In summary:
the various reprimands and warnings - the 'Final Warning Scheme' - will be replaced by the Youth Caution
Youth Conditional Cautions will be available across England and Wales
Penalty Notices for Disorder for under 18s will be abolished.
These can be given to a young person if they have been previously convicted of an offence.
Before issuing a Youth Caution, a police constable must decide:
there is sufficient evidence to charge the young person with an offence
it is not in the public interest to prosecute
As with the current rules for issuing a reprimand, the police must refer the young person to the appropriate youth offending team as soon as is practicable.
Similarly, if a second Youth Caution is given, the YOT will be expected to assess the young person and - if appropriate - deliver a voluntary rehabilitation programme (as is the case with Warnings).
As with reprimands/warnings, an adult must be present when a young person under 17 is given a Youth Caution.
Youth Conditional Cautions
Youth Conditional Cautions can now be given to a young person even if they have been charged with a previous offence.
Youth Conditional cautions no longer need to be authorised by a prosecutor in every case.
As with the current rules for issuing a reprimand, the 'authorised person' that gave the Youth Conditional Caution must refer the young person to the appropriate youth offending team as soon as is practicable.
This section creates offences of 'threatening with article with blade or point or offensive weapon in public or on school premises.'
This is where a young person intentionally uses the weapon (or item) to threaten another person creating an 'immediate risk of serious physical harm.' The offence must take place in a public place or on school premises.
These offences will have a maximum sentence of 4 years.
16 and 17-years-olds (when they are convicted) will be given a Detention and Training Order (DTO) for at least 4 months.
18 year olds will be given a custodial sentence of at least 6 months.
Courts will have discretion to consider community sentences to allow for early guilty pleas or mitigating circumstances.
As ever, the court has a duty to "have regard to the welfare of the child" as set out in section 44 of the Children and Young Persons Act 1933.
Abolition of certain sentences for dangerous offenders
The Act removes the provision for young people to receive a custodial sentence of detention for public protection.
Section 226 and 228 sentences will no longer available.
However, a new 226B sentence will be, and will be similar to s228. The main difference will be that the court must consider whether the young person meets the conditions for a discretionary life sentence (s91) before giving a 228B sentence.
Discretionary Life sentences under section 91 for specified offences will continue to be available - it is expected that section 91 will be used more as a result of this legislative change.
New extended sentences
Long licence periods are being introduced. When a young person is released from custody they will be monitored for long periods and returned to custody if necessary. This will be for up to 5 years for violent offences and 8 years for sexual offences.
Release on license - a young person will have to serve two-thirds of the custodial term of a 226B, rather than half, as is the current arrangement for a s228.
Rehabilitation of Offenders
This section makes changes to the changes to the Rehabilitation of Offenders Act 1974.
Custodial sentences of up to and including 4 years in length can become 'spent'.
The times when other convictions become spent have also changed - on the whole, they have been reduced.