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Easton & Piper: Sentencing and Punishment 4e

Chapter 11: Guidance for end-of-chapter questions

At the end of chapter 11 you were given:

  1. A case study about pre-court and post-conviction options for young offenders
  2. Discussion questions about rights. 

A. Case study: Ava and Bilal

The case study provided at the end of Chapter 13 also covers material in Chapter 6.

The facts of the scenario are as follows:

Bilal, aged 13, and his cousin Ava, aged 17, were arrested whilst in a video warehouse which they had entered by prising open a small window. They were taken to the local police station where, in the presence of a solicitor and an appropriate adult, Bilal confessed to burglary. Bilal had been given a caution the previous year.

You were first asked to take the role of the solicitor and ?

1. Explain to Bilal what decision the police are likely to make about him.

2. Explain to Bilal what would happen if the police decided to give him a youth conditional caution.

Guidance

1. Although Bilal has already received a caution he can receive another one if that is considered appropriate. The options open to the police are to take no further action, use a community resolution, give Bilal a caution  or a conditional caution, or pass the case to the Crown Prosecution Service with a recommendation that Bilal be prosecuted. The Gravity Factor Matrix would be consulted (see Chapter 6 section 6.3.6). Given that the offence is burglary the first two options are unlikely. On the other hand, because Bilal is only 13 and this is not particularly serious offence of burglary, there is no reason why another caution should not be given. The circumstances might suggest, however, that a conditional caution would be most appropriate in order to be able to impose rehabilitative or restorative conditions.  

2. The Youth Offending Team (YOT) will assess Bilal and advise on appropriate rehabilitation conditions for him. The YOT will also monitor his compliance with whatever requirements ? such as attendance at particular programmes ? have been imposed. They should explain to Bilal that non-compliance can lead to prosecution for the original offence.

Then you were asked to consider Ava?s case:

Ava was found to have stolen and hidden a quantity of videos before the arrival of the police. Ava, who had been given a youth caution for an offence a year previously, was pros­ecuted for the offence of burglary of commercial premises (Theft Act 1968, s. 9) for which the maximum penalty is ten years. She decided to plead guilty.

You were asked to explain to Ava -

3. What options are open to the youth court and which option they are most likely to choose.

4. Whether the options would be different if she had committed burglary of a residential property (for which the maximum penalty is 14 years).

Guidance

Ava has not been prosecuted before so this is her first appearance at the Youth Court. Because Ava has no previous convictions and she has pleaded guilty, the presumption is that Ava be given a referral order. The length would be specified and must be between 3 and 12 months. You would need to explain the process of referral to the Youth Offender Panel, what would happen there and what would be the outcome if Ava did not cooperate.

The only consideration which may be relevant to the first scenario is if the offence is so serious that the Youth Court believes it must impose a custodial sentence (or decline jurisdiction and refer the case to the Crown Court). This is unlikely in relation to the facts but a possibility in relation to burglary of a dwelling (question 4 above) which is considered more serious. If you consider the facts of the domestic burglary justify a custodial order (or transfer to the Crown Court) then you would need to summarize current legislation and case law on sentences of detention for minors (see below).

5. You were then asked to consider this alternative scenario and to explain to Bilal and Ava how and where such a sentence might be imposed and on what criteria. (Bilal is still 13 and Ava is still 17.)

Assume that Bilal and Ava confess to having jointly committed the offence of having possession of a Class B drug with intent to supply (Misuse of Drugs Act 1971, s 5(3)?for which the maximum penalty is 14 years? imprisonment). The youth court decides that a custodial sentence is the only appropriate sentence for both of them.

Guidance

The criteria for the imposition of a detention and training order - the 'normal' custodial order for minors - are to be found in section 100 of the Powers of Criminal Courts Sentencing Act (PCCSA) 2000 (subject to the general restrictions on imposing a custodial sentence to be found in the Criminal Justice Act 2003 sections 152-153). You will need to apply both these sets of criteria to the facts of the case, bearing in mind the additional criterion in relation to Bilal (persistent offender: PCCSA 2000 section 100(2)(a)). You would then need to decide on the likely sentence length (up to 24 months with a minimum of 4 months). You might explain that the first half would be spent in detention and the second half under supervision in the community.

The extended determinate sentence cannot be used as the offence is not on Schedule 15 of the Criminal Justice Act 2003 but you should note that the maximum penalty for the relevant offence is 14 years which means that the 'grave crimes' provision (now in the PCCSA 2000 section 91) is available to the Crown Court, providing the other criteria in that section are met. If the court were to use this provision they would need to establish whether no other disposal was suitable. You might refer Bilal and Ava to the following website which gives further information: http://www.direct.gov.uk/en/YoungPeople/CrimeAndJustice/Typesofsentencesyoungpeoplecanget/DG_196435

B. Discussion questions

1. ?Rights have proved to have limited value in improving conditions within the secure estate for children and young people.? Do you agree?

Guidance

This question is asking you to provide evidence for and against the statement and then decide which has most weight. So you need to discuss those aspects of conditions in Young Offender Institutions (YOIs), secure training centres (STCs),  and local authority secure children?s homes (SCH) which have been ameliorated by rights.   That improvement might have occurred because the government incorporated articles of the UNCRC or the ECHR into legislation or because a challenge was made in the courts on the basis of an alleged breach of a specified right. Section 11.5.1 in Chapter 11 discusses both successful and unsuccessful cases that you can use in answering this question. You might also discuss the ways in which the different Conventions can influence policy and practice, giving examples. You might in particular focus on those issues which have been contentious and where improvement has been limited or delayed: the use of restraint, the use of ?isolation? as punishment, procedures for adequate advice and representation before disciplinary hearings,  and the duty of the local authority to children in need in the secure estate, for example.   

2. To what extent do you think that civil orders to address anti-social behaviour are problematic when used with those under 18 years of age?

Guidance

You might continue the theme of rights here as the use of civil orders are problematic in that the proceedings are not subject to the same safeguards as orders imposed in criminal proceedings. Further, repeated breaches of the new injunctions can lead to custody for those aged between 14 and 17 which also raises the issue of the blurring of the criminal/civil distinction. You could also focus on the restrictive nature of some of the conditions placed in civil orders. For example, the new injunction in relation to antisocial behaviour may ?prohibit the respondent from doing anything described in the injunction? and/or ?require the respondent to do anything described in the injunction? which is very broad in its scope. You might also discuss both the beneficial and disadvantageous factors arising from imposing a parenting order on the parents of those under 18.  We concluded at the end of section 11.1 of Chapter 11, that some of the civil orders ?would appear to be disproportionate to the behaviour which triggers them and would appear to punish family members who might have little influence on the actions of other family members?. You may agree that such orders are very problematic or you may find evidence to argue against that conclusion.