Long delays are an all-too familiar part of the criminal justice system. As highlighted in the recent case of BH v Norwich Youth Court, those delays can have a significant impact on young people, particularly when a defendant turns 18 during the long process. An imminent change in the law may improve the situation but there are wider issues to be solved, too. Partner Sandra Paul, paralegal Emma McGrath and professional support lawyer Phil Taylor look at the issues.

It can take the police and the Crown Prosecution Service months and even years to make a charging decision in some criminal cases, and the subsequent delay before a court will be able to hear the issues is growing longer and longer. This prolongs an already distressing and uncertain period for the complainant, the suspect and both families.

Currently, all criminal cases involving children will start in the Youth Court, with certain limited exceptions including:

  • children charged along with an adult (who will go to the Magistrates’ Court);
  • children charged with murder, attempted murder or manslaughter (who must be sent straight to the Crown Court);
  • children who could receive an extended sentence (who must also be sent to the Crown Court); and
  • children charged with a ‘grave crime’ (who may be sent to the Crown Court if a prison sentence substantially longer than two years is a realistic possibility).

Youth Courts are known for their informal setting, with no wigs or gowns in sight and a practice of addressing the child defendant by their first name. These and other measures are designed to help young defendants effectively participate in and understand the proceedings. Those are laudable goals, but the measures sometimes could lead to an adverse effect on the type of justice produced. The Youth Courts were not designed to deal with the more legally complex and serious crimes, such as rape and sexual assault; and the more informal approach is not always ideal where issues such as disclosure are concerned, and the high turnover of cases produces a need for speed, sometimes resulting in a poor quality of justice.

Recent cases handled by Kingsley Napley provided extreme examples of the significant issues caused by the lack of structure and sometimes chaotic experiences typical of the Youth Justice System. In these cases, there were long and stubborn delays from the start, leading to our clients reaching adulthood during the process. In some cases, we have also seen police investigations lasting three years; a child being arraigned a day before their 18th birthday; Youth Courts retaining jurisdiction despite both parties inviting them to decline it; prosecutors acknowledging to the court that they had not seen the file until the morning of the trial; disclosure failings; and the Crown referring a sentence to the Court of Appeal leaving the defendant without the benefit of anonymity.

A related issue which can appear in youth cases is whether those approaching 18, or who might reach 18 by the time the matter goes to trial, ought to be given the right to elect trial by jury in the Crown Court. This mode of trial is often favoured by defendants due to the nature of ‘trial before peers’ as well as the higher level of judicial expertise.

In the case of BH v Norwich Youth Court [2023] EWHC 25 (Admin), two high court judges dealt with these issues of age, court jurisdiction and the election of jury trial. The case involved a youth who was charged with three counts of rape allegedly committed when he was 16 years old. Criminal proceedings were commenced on 6 December 2021 and his first appearance took place in January 2022 at Norwich Youth Court. Representatives for both sides argued the matter should be dealt with in the Crown Court, including due to issues (raised by the defence team) of complexity. However, the Youth Court decided it should retain jurisdiction.

The High Court held that the Youth Court was right, in an important decision which reaffirms that a Youth Court can only send a child to the Crown Court if it has statutory jurisdiction to do so. The defence had argued that the procedure under s.24A Magistrates’ Court Act 1980 was mandatory and should have been followed in order to send the defendant to the Crown Court.

Another line of argument was that the Youth Court’s jurisdiction to try indictable offences is subject to s.51A Crime and Disorder Act 1998 which states that a defendant must be sent for trial where the court considers that the defendant could be sentenced to more than 2 years if found guilty. Defence counsel attempted to persuade the High Court that the decision to retain jurisdiction was wrong. The High Court said that this “certainly was not one of the rare cases requiring the Youth Court to decline jurisdiction because the offending was so grave”, even if the trial court may in due course conclude that a sentence of more than two years is merited.

The High Court found the judge had applied the Sentencing Children and Young People guideline “in a conventional fashion” and concluded that, on the information available, the case fell into Category 3B in the adult guideline.

The defence also argued that the judge failed to observe the fact that the defendant would have passed his 18th birthday by the time of any conviction and so the Sentencing Children and Young People guideline would not apply in his case, and that the judge was wrong because he ignored the fact that any sentencing court would be free to sentence the defendant as an adult. The High Court disagreed. It found that although the crossing of the age boundary was a relevant consideration, “any judge is required to follow a relevant guideline” and the Sentencing Children and Young People guideline was therefore relevant; that any sentencing court would not be free to sentence the defendant as an adult: although, according to the guidelines, a person convicted at the age of 18 would be subject to the purposes of sentencing applicable to adults, the length of sentence would be dictated by his age at the time of the offence.

Despite the arguments from the defence and prosecution, the High Court found that a youth subject to a rape charge who is aged under 18 at the allocation date has no inherent or statutory right to a jury trial in the Crown Court even if it is known they will be 18 by the start of the trial in the Youth Court.

One solution to the issue of age and jurisdiction will be the forthcoming new section 47(1A) of the Crime and Disorder Act 1998. The provision, added by s.12 of the Judicial Review and Court Act 2022, and yet to come into force, means that the Youth Court will be able to send a person accused of an indictable offence for trial to the Crown Court. This may be welcome news for those representing the many children and young people who are under criminal investigation; however, there are many wider issues that need addressing in order for the Youth Justice System to function properly.

A fundamental principle of the system is that non-adult suspects should in general be dealt with in the Youth Court, where there is an emphasis on rehabilitation. Unfortunately, youths are losing important protections when turning 18 as a result of significant delays – through no fault of their own. In reality, there need to be significant improvements made to the functionality and quality of the Youth Justice System in order to speed up matters for youths caught up in the process. In terms of jurisdiction, the addition of the s.47 (1A) provision may be a significant step forward in the law for those accused of serious offences. It will be revealing to take note of how the new provision influences cases once it comes into force.