A bill has been introduced to Parliament which would ensure that all children are dealt with by the youth courts rather than the adult courts if the alleged crime is carried out before the child reaches 18.

Rob Butler, former magistrate in both adult and youth courts, a member of the Youth Justice Board, a non-executive director of Her Majesty’s Prison and Probation Service and a member of the Sentencing Council, introduced the bill in Ten Minute Rule to ensure that to provide that if someone is charged with a criminal offence aged under 18 at the time of the alleged offence, they would be subject to the jurisdiction of the youth court and to youth sentencing provisions; and for connected purposes.

“Justice delayed is justice denied. I submit that that is even more starkly so in the case of child offenders,” said Mr Butler.

He cited the UN convention on the rights of the child which states that: “Child justice systems should also extend protection to children who were below the age of 18 at the time of the commission of the offence but who turn 18 during the trial or sentencing process.”

Mr Butler added: “My Bill seeks to ensure that that becomes the case in England and Wales. At the moment, the justice system treats a defendant according to their age on the date they first appear in court and enter a plea. The consequence of this is that if someone commits an offence aged 15, 16 or 17, but do not get to court until after their 18th birthday, they are treated as an adult.”

“That immediately affects both the type of court that deals with them and the range of sentences available. But the repercussions do not stop there, because there can be an impact on the chance of rehabilitation and the likelihood of getting a job, with the prospect of forever having to declare a mistake from the past. It is no exaggeration to say that the consequences can last a lifetime, because in our justice system there is a cliff edge when people reach their 18th birthday, and it is a very steep cliff,” he added.

A child defendant under the age of 18 in England and Wales will appear before a youth court, which has specially trained magistrates and judges, who know how to interpret a young person’s behaviour, and they speak directly to the children in front of them, asking them why they committed the offence and ensuring they understand its consequences. Children appearing in the youth court are supported by the youth offending service—expert, multidisciplinary teams based in local authorities. Perhaps most significantly, in the youth court, young people can be sentenced to a referral order, which focuses on rehabilitation and restorative justice, and is overseen by the youth offending team. Once the referral order is completed, the offence is immediately spent, meaning that the young person does not carry a criminal record.

The procedures exist because the youth justice system has an overarching aim outlined in legislation, to prevent reoffending, and courts must therefore make that their priority. It should go without saying that reducing reoffending means there will be far fewer victims of crime, and that must surely be welcomed by all.
However, Mr Butler highlighted that all that changes if a young person turns 18 even a day before their case gets to court. Firstly, there is no special training for the judiciary, there is no dedicated support from the youth offending service, no bespoke sentence and no priority on reducing reoffending. What is more, harsher criminal record and disclosure requirements for adults further decrease employment prospects and risk preventing people from moving on with their lives, and yet this is something over which the young person has absolutely no control.

It is also by chance whether a young person turns 18 before their case goes to court as it is usually down to delays in the system—in either the police investigation or the court listing process. Mr Butler said that given two people with the same birthday could commit the same crime on the same day but be treated completely differently as a result of how long it takes for their case to get to court.
“There seems to be no logic, common sense or fairness in that,” he said.

While there are no exact figures as to how many children this situation affects, it has previously been suggested that 2% to 3% of proven offences are committed by children who turn 18 before their conviction which translated into 1,400 for the year ending March 2018. The problem will have been exacerbated due to changes in police procedures and as a result of the coronavirus pandemic.

The growing use by police of release under investigation has resulted in delays to charging decisions, with the average number of days between an offence and charge for youth cases increasing by 78% in the past nine years. There has also been an increase in the delay from charge to the first court listing by a further 61%. It can therefore easily take a year before the first court appearance, and even longer in the case of some serious offences. Secondly, covid-19 has lengthened delays throughout the whole court system.

“The justice system needs to tackle offending behaviour according to a person’s culpability, maturity and potential for rehabilitation,” said Mr Butler.

“If my Bill succeeds, a young person who commits an offence before their 18th birthday will be subject to the youth court and to youth sentencing provisions. That would be a relatively simple change to make in legislation. In many respects, it does no more than correct an anomaly, but for those affected its impact would be profound. It would enable young people to put their mistakes behind them and make a constructive contribution to society. It would put more emphasis on preventing re-offending. It would mean a fairer system; it would mean a more just system,” he concluded.

The bill was introduced on 23 February and received a second reading on 24 February.

Youth Courts and Sentencing Bill
Private Members' Bill (under the Ten Minute Rule)