A Note on Remittal to the Youth Court and the Impact of Coronavirus
August 27, 2020
Normally, any trial of a child  or young person  is held in the Youth Court. However, if the child or young person is jointly charged with an adult and the adult is sent to the Crown Court, the child or young person may also be tried in the Crown Court if it is in the interests of justice to have them tried jointly.
Being tried in the Youth Court rather than the Crown Court has advantages for any child or young person – for instance the less formal procedure and the availability of a referral order on sentence. However a further and possibly even greater advantage is that the backlog in the youth court as a result of the pandemic is significantly less than in the Crown Court. This has recently been acknowledged by the Judicial Lead for England and Wales – Mr Justice David Williams. This article deals with that note and its impact on allocation. It will also deal with remittal to the Youth Court for sentence should the trial be allocated to the Crown Court.
The Interests of Justice Test
As stated above, if the child or young person is jointly charged with an adult and the adult is sent to the Crown Court, the child or young person may also be tried in the Crown Court if it is in the interests of justice to have them tried jointly.
CPS guidance states:
A joint trial will usually be in the interests of justice as it reduces the risk of inconsistent verdicts and is less stressful and inconvenient for the witnesses. Although youths should be tried in a specialist youth court wherever possible, they can have a fair trial in the Crown Court, which can modify its practice and procedure to enable youth to participate effectively in their trial.
Other relevant non-exhaustive factors may include:
- the respective ages of the adult and youth (the bigger the disparity, the more likely the youth will be remitted);
- the lack of maturity of the youth;
- the respective roles of the youth and adult in the commission of the offence (the more minor the role the youth played, the more likely the youth will be remitted);
- whether separate trials will cause injustice to witnesses or to the case as a whole;
- whether there are existing charges against the youth before the Youth Court;
- the need to deal with the youth as expeditiously as possible consistent with the interests of justice; and
- the likely sentence upon conviction.
The Recent Guidance on the Relevance of Coronavirus
Recent guidance from the Judicial Lead for Youth Justice for England and Wales discusses the relevance of coronavirus when making this decision. The note states:
The guidelines were not written in anticipation of a public health emergency which would lead to trials in the Crown Court being put on hold followed by a resumption of such trials on a substantially reduced basis. The consequence of the current emergency is that the backlog of trials in the Crown Court has grown significantly and it continues to grow as more cases are sent to the Crown Court. The capacity of Crown Courts to try cases involving two defendants is limited. Thus far, it has proved very difficult to try cases involving multiple defendants.
Cases where a youth is jointly charged with an adult by definition involve at least two defendants. Very many of those cases will involve three, four and more defendants. For the reasons set out above, any such case sent to the Crown Court is highly likely to be subject to significant delay. Every possible step is being taken to ameliorate the position. However, it has to be recognised that delays will continue at least for the time being.
The note acknowledges that of course there is still a backlog of bail cases in some Youth Courts however it is nothing as significant as that in relation to jury trials in the Crown Court.
It therefore provides an extra additional factor to be considered when applying the interests of justice test: the delay in trying the youth. The note emphasises that this will not be determinative any more than any of the other factors are however must be an important factor in the current public health emergency we find ourselves in. The disadvantages of delay in trying the youth or youths may outweigh any injustice of separate trials.
Remittal to the Youth Court for Sentence
Even if the child or young person has been sent for trial in the Crown Court, it is still possible for them to be remitted to the Youth Court for sentence if convicted. The Sentencing Council’s Children and Young People Definitive Guideline at paras 2.15 and 2.16 states that where a child or young person is found guilty before the Crown Court of an offence other than homicide the court must remit the case to the Youth Court, unless it would be undesirable to do so.
In considering whether remittal is undesirable a court should balance the need for expertise in the sentencing of children and young people with the benefits of the sentence being imposed by the court which determined guilt. The guideline emphasises at 2.16:
Particular attention should be given to children and young people who are appearing before the Crown Court only because they have been charged with an adult offender; referral orders are generally not available in the Crown Court but may be the most appropriate sentence.
It may also be said to be undesirable to have inconsistent sentences between the adult and youth offenders, and this is more likely if they are sent to different courts. It could also be undesirable if it would mean duplicity of work done. If there is a large volume of evidence which another court would have to spend the time going through in order to sentence it may be desirable to keep the sentence in the Crown Court.
The Emphasis on Referral Orders
There is specific mention of the availability of referral orders when deciding the venue for both trial and sentence. A referral order requires the offender to attend a youth offender panel (made up of two members of the local community and an advisor from a youth offending team) and agree a contract, containing certain commitments, which will last between three months and a year. The aim is for the offender to make up for the harm caused and address their offending behaviour. An order must be imposed for a first time young offender who has pleaded guilty (unless the court decides that another sentence is justified) and may be imposed in other circumstances.
Referral orders are generally different from other community sentences due to:
- the involvement of the community, in particular through the work of the panels and as beneficiaries of reparation
- the role of the panel in agreeing and monitoring the contract and responding to non-compliance
- the place of the contract in determining what activities will be undertaken during the order
- the right of the victim to be involved and have their voice heard
- restorative justice, repairing harm and reparation being central to the work
- attention being given to reintegration into the community
- specific statutory guidance that applies to their operation. 
The different approach which referral orders take seem to have a positive impact. According to a report by HMI of Probation, published reoffending rates following referral orders have consistently been better than those following Youth Rehabilitation Orders or custodial sentences. In the 2013/2014 cohort of cases which the report considers, the reoffending rate within 12 months was 39.4%, compared to 64.5% for those subject to Youth Rehabilitation Order.
At paragraph 3.3 the report states:
HMI Probation commissions an annual survey of the views of young people under the supervision of Youth Offender Team about the work undertaken with them. During the year to March 2015, 5,312 young people completed the survey of which 2,460 were on a referral order. Of this 88% of young people on referral orders said they were less likely to offend following work with a Youth Offender Team. This was slightly better than for Youth Rehabilitation Orders and considerably better than custodial sentences. In all cases young people on referral orders were substantially more positive about the work that had been done at the Youth Offender Team.
Ordinarily, the Crown Court does not have the power to make a referral order. Instead, it would make a Youth Rehabilitation Order. This does not have the same community involvement and is able to be made for a longer period of time of up to three years. Furthermore a referral order is spent at the end of the set period, whereas a Youth Rehabilitation Order is spent six months from the completion of the order. However, in the event that the Judge refuses to remit the defendant to the Youth Court for sentence another possible approach the defence can take is to ask the Judge to use the powers under Section 66 of the Courts Act 2003 and sit as a District Judge. Under this section a Crown Court judge will be able to make orders and to sentence in relation to cases normally reserved to Magistrates’ Courts when disposing of related cases in the Crown Court. This would allow the Judge to sentence the defendant to a Youth Rehabilitation Order despite being in the Crown Court.
There are clear advantages for having a child or young person dealt with in the Youth Court for both trial and sentence. The recent guidance has expressly mentioned the delay to trial in the Crown Court as a factor to consider when deciding if it is in the interests of justice to have the child or young person tried in the Crown Court. More than ever Judges may be keen to separate the child and young adult defendants from the adults to avoid the long delay.
 A person under the age of 14 years
 A person who has attained the age of 14 years and is under the age of 18 years
 Paragraph 1.13 of Referral Orders – do they achieve their potential? An inspection by HMI of Probation https://www.justiceinspectorates.gov.uk/hmiprobation/wp-content/uploads/sites/5/2016/07/Referral-orders-do-they-achieve-their-potential.pdf