Children and young people who offend are treated differently from adults. The youth justice system recognises that young people are less mature, more susceptible to peer pressure, and have a greater capacity for change. The focus is on rehabilitation and welfare rather than pure punishment. Understanding these differences is essential for any criminal practitioner.
The criminal law draws important distinctions based on age. A child is someone under 14. A young person is aged 14 to 17. Anyone aged 18 or over is an adult and dealt with in the normal criminal courts. These categories matter because they determine which court has jurisdiction and what sentences are available.
| Category | Age | Key Points |
|---|---|---|
| Child | Under 14 | Dealt with in youth court, welfare focus |
| Young person | 14-17 | Dealt with in youth court, more sentencing options |
| Adult | 18+ | Normal criminal courts and sentencing |
| Doli incapax | Under 10 | Cannot be criminally liable at all |
| Doli incapax rebuttable | 10-13 | Criminally liable only if prosecution proves they knew it was seriously wrong |
The age of criminal responsibility in England and Wales is 10. Below this age, a child cannot commit a criminal offence (doli incapax is irrebuttable). For children aged 10-13, doli incapax is a rebuttable presumption - the prosecution must prove the child knew the act was seriously wrong, not merely naughty. In practice, this presumption is relatively easy for the prosecution to rebut.
Always check the defendant's age at the time of the offence, not at the time of the court appearance. A 17-year-old who commits an offence but turns 18 before the hearing is still dealt with as a young person in the youth court.
The youth court is a special type of magistrates' court that deals exclusively with defendants aged 10-17 (except for homicide and certain grave crimes). It is not a separate building - it usually sits in the same building as the adult magistrates' court but in a different room. The proceedings are less formal and designed to be less intimidating for young defendants.
Youth court magistrates receive special training in dealing with young offenders. At least one member of the bench must be on the youth court panel. The magistrates sit with at least two others and there is no jury. The magistrates are trained to communicate with young people and understand the particular needs and vulnerabilities of children in the justice system.
Unlike adult courts, the youth court is not open to the public. Only specified people may attend, including the defendant, their family, legal representatives, witnesses, and officers of the court. This is to protect the young person's privacy and welfare. The press can attend but are subject to reporting restrictions.
Under s.44 Children and Young Persons Act 1933 (as amended), it is a criminal offence to publish material that identifies or is likely to identify a child or young person appearing in the youth court. This includes their name, address, school, or photograph. The restriction applies to all media. The court can lift these restrictions in certain circumstances, such as for the purpose of crime detection.
Publishing the identity of a young defendant in breach of s.44 CYPA 1933 is a criminal offence punishable by a fine. This applies to journalists, social media users, and anyone else who publishes identifying information. If your client is a young person, remind them that their friends and family should not post about the case online.
Children and young people accused of homicide (murder or manslaughter) must be sent to the Crown Court for trial, regardless of their age. The youth court does not have jurisdiction over homicide offences. The trial is held in the Crown Court but with special adaptations to accommodate the young defendant.
For other serious offences (called "grave crimes"), the youth court can decide to send the case to the Crown Court if it considers its sentencing powers are insufficient. This happens when the offence is so serious that only the Crown Court can impose an appropriate sentence. The youth court retains the power to deal with the case unless it decides to decline jurisdiction.
There is a strong statutory presumption that children and young people should be tried in the youth court rather than the Crown Court. The youth court should only decline jurisdiction in the most serious cases. This reflects the principle that young people are best dealt with in a less intimidating environment with specially trained magistrates.
As a general rule, a young person charged jointly with an adult should still be dealt with in the youth court. The case against the young person can be severed (separated) from the adult's case so they can be tried separately. The adult's case proceeds in the magistrates' court or Crown Court, while the young person's case goes to the youth court.
In some circumstances, the court may decide that a joint trial in the Crown Court is in the interests of justice. This might happen where the evidence of the young person and the adult is so closely connected that separate trials would be unfair. The court must carefully weigh the benefits of a joint trial against the disadvantages of a young person being tried in the adult court.
There is a strong presumption that young people should be tried in the youth court, even when jointly charged with adults. The court should only order a joint trial in the Crown Court if there is a compelling reason. The welfare of the young person is a key consideration.
Under s.44 Children and Young Persons Act 1933, every court dealing with a child or young person must have regard to their welfare. This is a statutory duty that sits alongside the court's duty to punish offending. The welfare principle does not mean the court cannot impose custodial sentences, but it does mean the court must consider the impact of any sentence on the young person's welfare.
Every court in dealing with a child or young person who is brought before it, either as an offender or otherwise, shall have regard to the welfare of the child or young person and shall in a proper case take steps for removing him from undesirable surroundings, and for securing that proper provision is made for his education and training.
Young people have reduced culpability compared to adults. This is because their maturity, judgment, and ability to understand consequences are still developing. The sentencing guidelines reflect this by requiring courts to reduce the seriousness of the offence when assessing culpability. The younger the defendant, the greater the reduction. A 10-year-old's culpability is significantly less than a 17-year-old's.
The youth court should only impose a custodial sentence as a last resort. The court must be satisfied that no other sentence is appropriate. This principle is reinforced by the UN Convention on the Rights of the Child, which the UK has ratified. Custody should only be imposed for the most serious offences or where the young person poses a real risk of harm.
A referral order is the standard sentence for a young person (aged 10-17) who appears in court for the first time and pleads guilty. The young person is referred to a youth offender panel for a programme of activity lasting between 3 and 12 months. The panel is made up of trained volunteers from the local community and at least one professional from the youth offending team.
The youth offender panel meets with the young person and their parents to agree a contract. The contract sets out what the young person will do during the referral period. This might include activities like repairing the harm caused (reparation), attending programmes to address offending behaviour, and meeting the victim (if the victim consents). The aim is to make the young person take responsibility for their actions.
If the young person refuses to agree a contract with the panel, they must be sent back to court for resentencing. The court will then impose a different sentence. It is important to explain to the young person and their parents that engaging with the referral order is in their interests - it avoids a more serious sentence.
A Youth Rehabilitation Order (YRO) is the main community sentence for young offenders aged 10-17. It is a single order that can include a range of different requirements. The court chooses the requirements that are most appropriate for the individual young person. The YRO replaced several older community sentences and provides a flexible approach to sentencing.
The YRO can include one or more requirements from a list set out in the legislation. These requirements are tailored to address the specific causes of the young person's offending. The more serious the offence and the higher the risk of reoffending, the more intensive the requirements will be. The order lasts up to three years depending on the requirements imposed.
For more serious or persistent offenders, the court can impose a YRO with intensive supervision and surveillance (ISS). This is a more demanding version of the YRO. It involves at least 25 hours of supervised activity per week for the first three months, plus electronic monitoring and intensive support. ISS is designed as a credible alternative to custody for young people who might otherwise receive a custodial sentence.
The great strength of the YRO is its flexibility. The court can pick and choose the requirements that best address the young person's offending behaviour. When advising, think about what caused the offending (e.g., substance misuse, peer pressure, lack of education) and suggest requirements that target those specific issues.
If the young person breaches a YRO requirement without reasonable excuse, they can be returned to court. The court can then: add more requirements, extend the order, or in serious cases, impose a custodial sentence. It is important to explain to the young person that breaching the order has serious consequences.
A Detention and Training Order (DTO) is the standard custodial sentence for young offenders aged 12-17. Under s.100 Powers of Criminal Courts (Sentencing) Act 2000, the DTO splits the sentence into two halves. The first half is spent in custody (in a secure children's home, secure training centre, or young offender institution). The second half is spent under supervision in the community.
A court may pass a detention and training order on a child or young person who has been convicted of an imprisonable offence, if the offence is so serious that neither a fine alone nor a community sentence can be justified.
A DTO can be for 4 months, 6 months, 8 months, 10 months, 12 months, 18 months, or 24 months. The court must specify the total term. The first half is served in custody, the second half in the community under supervision by the youth offending team. A DTO of less than 12 months is available for 12-14 year olds only in very restricted circumstances.
Young people serving a DTO are held in one of three types of establishment. Children aged 12-14 (and some 15-17 year olds, particularly girls) are held in secure children's homes. Some 15-17 year olds go to secure training centres. Older teenagers may be held in young offender institutions (YOIs), which are essentially prisons for young people. The choice depends on the young person's age, vulnerability, and the availability of places.
If the young person breaches the conditions of the community supervision half of the DTO, they can be recalled to custody. The Secretary of State can order the young person to be brought back into detention. The court can also deal with the breach. This means the supervision half is not a guarantee of liberty - conditions must be complied with.
Section 90 PCC(S)A 2000 provides for the detention of children and young people convicted of offences that would attract a life sentence for an adult. The most common example is murder. The court sets a minimum term that the young person must serve before they can be considered for release by the Parole Board. The starting point for murder by someone under 18 is 12 years, but this can be higher for exceptionally serious cases.
A DTO is for "ordinary" imprisonable offences. Section 90 detention is for the most serious offences where an adult would receive a life sentence or a very long custodial sentence. The key difference is that s.90 detention does not have a fixed maximum length - the young person is detained until the Parole Board considers them safe to release.
The youth court can impose a fine on a young person, but the amount must take into account their age and financial circumstances. The maximum fine is generally lower than for adults. The court must consider the young person's ability to pay. A parent or guardian can be ordered to pay the fine if the young person cannot. The court must explain the fine in language the young person can understand.
The youth court can give a young person an absolute or conditional discharge. An absolute discharge means no further action - the court considers the conviction is punishment enough. A conditional discharge means the young person is released on condition that they do not commit another offence within a specified period (up to three years). If they reoffend, they can be resentenced for the original offence as well as the new one.
A reparation order requires the young person to make amends for their offending. This could involve writing a letter of apology, repairing damage to property, or doing unpaid work for the victim or the community. The court must consult the victim before making a reparation order. The order is designed to help the young person understand the impact of their actions and take responsibility.
An action plan order is a short, intensive community sentence lasting three months. It requires the young person to comply with a plan set by the court. The plan can include requirements like attending school or work regularly, attending counselling, and meeting a specified person. It is designed to nip offending in the bud before it escalates. Action plan orders are less commonly used now that referral orders and YROs are available.
| Sentence | Age Range | Key Feature |
|---|---|---|
| Referral order | 10-17 | First-time offenders who plead guilty, 3-12 months |
| YRO | 10-17 | Flexible community sentence with requirements, up to 3 years |
| YRO with ISS | 10-17 | Intensive community alternative to custody |
| DTO | 12-17 | Custodial, half custody half supervision, 4-24 months |
| s.90 detention | 10-17 | For offences warranting life sentence for adults |
| Fine | 10-17 | Proportionate to ability to pay |
| Discharge | 10-17 | Absolute or conditional |
| Reparation order | 10-17 | Making amends to victim or community |
When the youth court sentences a young person, the sentence must be proportionate to the offence and the young person's culpability. The younger the defendant, the greater the reduction for immaturity. Always remind the court of the welfare principle under s.44 CYPA 1933 and the principle that custody should be a last resort.
Wales is a bilingual country and the legal system must accommodate Welsh speakers. A person who is more comfortable speaking Welsh should not be disadvantaged in criminal proceedings. The law provides specific rights to use Welsh in court, and public bodies in Wales have obligations to provide services in Welsh.
Under the Welsh Language Act 1993, any person giving evidence in a court in Wales has the right to do so in Welsh. This is a statutory right that applies in all courts, including criminal courts. If a witness or defendant wants to give evidence in Welsh, the court must arrange for a Welsh-speaking interpreter or a Welsh-speaking magistrate or judge to be available.
The right extends beyond giving evidence. A party to proceedings in Wales (including a defendant, their solicitor, or a barrister) has the right to address the court in Welsh. The court must make arrangements for this, including providing interpreters if needed. This right is also protected under the Government of Wales Act 1998 and the Wales Act 2017.
In the legal system, this Act gives persons the right to speak Welsh in court proceedings in Wales. It places a duty on courts to make arrangements for the use of Welsh in proceedings.
The Wales Act 2017 further strengthened Welsh language rights. It confirmed that the Welsh language has official status in Wales and that treating the English and Welsh languages equally should be a principle of the law. The Act also removed a previous restriction that limited the right to use Welsh to cases where a party or witness was a Welsh speaker. The right now applies more broadly.
If your client is a Welsh speaker, ask them early in the process whether they would prefer to give evidence and be addressed in Welsh. You need to notify the court in advance so that appropriate arrangements can be made. Do not leave this to the day of the hearing - interpreters and Welsh-speaking court staff need to be arranged in advance.
No person should be disadvantaged in any way by choosing to use the Welsh language in legal proceedings. If your client's trial is in Wales and they want to use Welsh, they should not face delays, additional costs, or any prejudice as a result. The system is designed to accommodate both languages equally.