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M01 - Prosecution and Diversion (Children and Young People, 10-17 years)

 

 1.  Security Protective Marking

1.1 Not protectively marked.

2.  Summary of changes

2.1 The following paragraphs were updated on 5 April 2013:

    • This policy has been reviewed, reduced and rewritten in line with changes to legislation.

2.2 This policy is due for review in April 2015.

3. Introduction 

3.1. From 8 April 2013 the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) replaces reprimands and final warnings with the youth cautions and youth conditional cautions.
It should be noted that the option to deal with young people under a penalty notice for disorder will be withdrawn under the LASPO Act and PND will no longer be available to the under 18 age group.

This does not affect cautioning for adults, which can be found in policy M01a (restricted).

 

4. Prosecution policy young offenders (10-17 Yrs) 

4.1.  Unless it is specifically stated, the terms children, juveniles and young persons as used in this policy will refer to persons who have not attained the age of 18 years.


4.2.  Criminal cases may be resolved by:

    • No further action;
    • Community Resolution;
    • Youth Caution;
    • Youth Conditional Caution;
    • Charge/summons.


4.3.  Traffic offences may be resolved by:

    • As above;
    • Or
    • By use of the Vehicle Defect Rectification Scheme.


5.  Investigation

5.1. The method of potential disposal of a case should not be anticipated in such a way as to inhibit the thorough investigation of offences. The view of victims of crime must be obtained, as they may have a bearing on how serious the offence is judged to be. The victim's view is not in itself conclusive but is a factor, which should be fully considered.

5.2. Those who commit offences jointly with others should be considered individually and whilst being mindful of the need for consistency and fairness, disposals should usually relate to the circumstances and involvement of the individual.

 

6. No Further Action 

6.1.  No Further Action (NFA) is a process which cannot be cited in criminal legal proceedings. It is not, therefore, considered to be an entry into the criminal justice system. It is the appropriate means of resolving, for example:

    • Offences committed by persons under 10 years
    • Or
    • Offences where there is insufficient evidence to proceed (Refused Charge).


6.2.  The officer dealing with the case may decide no further action. Where the subject remains in custody, No Further Action may be decided by the Custody Officer.


6.3.  No Further Action is NOT a youth caution or conditional youth caution and will not be cited as such in court, nor is retained as part of a criminal record.

7.  Youth Caution 

7.1. There is no escalatory process, as per the final warning scheme, for youth cautions so the range of outcomes can be considered at any stage where it is determined as appropriate and upon the severity of the offence.

7.2. The youth caution can only be given when:

    • The young person admits the offence;
    • There is sufficient evidence for a realistic prospect of conviction;
    • It is not in the public interest to prosecute;
    • It is not an offence which is excluded from being dealt with by way of an Out of Court Disposal.


7.3. Section 136 of the LASPO Act permits the use of out of court disposals when formal disposals have been given previously. These previous disposals must be considered in any decisions to give an out of court disposal. 

Care must be taken to guard against any inappropriate repeat cautioning.

7.4. A youth caution may be given only if the police are satisfied that it would not be in the public interest to prosecute, or that the public interest can be met by offering a youth caution.   In determining the public interest, each case must be considered on its own merits. Section 4 of the Director of Public Prosecutions Code for Crown Prosecutors offers guidance on the public interest test and factors that should be taken into account.

7.5. Where the option to prosecute has not been ‘ruled out’, and where there are risk factors present, the police will bail the young person (if they have been arrested if not invited to attend) to a restorative clinic and inform YOT. 

7.6. All referrals to YOT must be made within 24 hours of determining the possible outcome by completing the EForm F085.

7.6. All out of court disposals should be dealt with by the restorative clinics and the young person informed that a resolution will be decided based on the facts of the case, the views of those affected and their attitude towards what has happened.

    • DO NOT – inform them that they will receive a specific outcome, the final decision lies with the presiding officer;
    • DO – inform them that the following organisations may be in contact with them prior to their clinic appointment; the Youth Offending Team and/or a body (currently the Mediation Service) acting on behalf of the Police & YOT who help to manage the restorative element of the clinics.

7.7. When considering the seriousness of the offence refer to the revised Gravity Matrix.  All offences have been given a gravity score of between ‘1’ for the most minor offences and ‘4’ for the most serious.  The Gravity Matrix must be used to assess whether a young person should be cautioned.  It reflects the Public Interest Principles in the Code for Crown Prosecutors.

8.  Youth Conditional Caution (YCC)

8.1. The Youth Conditional Caution is a formal Out of Court Disposal, but with compulsory assessment and intervention attached to it.  A YCC may be offered when:

    • The young person admits an offence;
    • There is sufficient evidence for a realistic prospect of conviction;
    • When the public interest can best be served by the young person complying with suitable conditions rather than a prosecution.

      8.1.1. A YCC can be offered to those aged between 10 and 17 at the time offence.  If the offender turns 18 before the YCC is issued then an adult conditional caution will be used instead.


8.2.  Youth conditional cautions can only be administered through the restorative clinics.

8.2.1.  The YOT must assess the young person and advise on appropriate conditions.    The young person must also agree to accept the YCC and the conditions attached. Police should not agree conditions which are to be delivered by the YOT without the YOT’s prior agreement. The conditions attached to the YCC can be reparative, rehabilitative or punitive in nature.

8.3.  The YOT are responsible for monitoring conditions and advising on non-compliance.

8.3.1.  Notifications of non-compliance will be referred by YOT to the relevant Criminal Justice Unit, who will in turn update Genesis and return the file to the officer to consider further action.

8.3.2.  When the YCC is being decided upon, the decision maker should consider the mechanism by which compliance with the conditions will be monitored and demonstrated. This could include agreement with the police to monitor a curfew, or HMCS if they are collecting a financial penalty. This should be set out in the conditional caution form that is agreed to by the young person, YOT and police.

8.3.3. At least one condition should be attached, but there is no limit to the actual number of conditions but should be proportionate to the offence.  Conditions should not last longer than 3 months from the date of offence.

8.3.4.  For summary only offences all conditions must be completed within a time scale not more than six months of the original offence. When deciding on time scales for the completion of conditions it must be recognised that cases can only be progressed to Court within the six month period.

8.3.5.  The victim’s consent must be obtained in any case where direct reparation or restorative justice processes are being considered, or where the victim is directly involved in some way. 

8.3.6.  Failure to comply with the conditions can result in prosecution for the original offence.

8.3.7.  All offences are available for a YCC disposal, but if it is an indictable only offence the CPS will need to be consulted before a decision is made to offer a YCC. 

8.3.8.  A young person can have more than one YCC.  If in the decision making process it is felt there has been a passage of time since the original YCC or that it is a different offence or that they responded well to previous conditions a further YCC can be administered. 

8.3.9.  For more information click on the Youth Justice Board - Youth Conditional Caution – a quick reference.

 9. Assessing the options 

9.1.  When admission to an offence occurs the officer dealing should seek advice from the Crown Prosecution Service (CPS) before a youth caution or youth conditional caution can be administered for certain types of offences. The Attorney Generals guidelines in connection with statutory charging should be referred to for the list of these qualifying offences.

9.2.  All indictable only offences must be referred to the CPS to decide whether to charge or divert, as only the CPS can make that decision. When considering the appropriateness of a second caution or conditional caution, the police must refer to the Youth Offending Team for assessment of the youth in order for a joint decision to be made.

9.3.  Each case must be considered on its individual facts, taking into account the circumstances of the offender, including any aggravating or mitigating factors relating to the offence. The age and maturity of the offender will be of relevance in most cases, and other general factors, which can affect the decision on how to proceed.

9.4.  A key factor will be the impact of the offence on the victim. Wherever possible, therefore, the victim should be contacted to establish:

    • Their views about the offence;
    • The nature and extent of any harm or loss; and
    • Its significance relative to the victim's circumstances.

10.  Knife Crime

10.1.  It is recommended that forces follow a national agreement to interpret Knife-Crime offences as follows:

• The first arrest of a youth of any age for possession of an Offensive Weapon or Sharp Pointed blade, with aggravating factors, will result in the first instance with a charge;

• The first arrest of a youth under 16 for simple possession of an Offensive Weapon or Sharp Pointed Blade, with no aggravating factors, will result in the first instance with a youth conditional caution. This must be supported by an appropriate YOT intervention, preferably with elements focussed on anti-knife crime education. A youth aged 16 or over will normally be charged;

• The second arrest of a youth under 16 for simple possession of an Offensive Weapon or Sharp Pointed Blade will result in a charge (unless, in exceptional circumstances, 2 years have passed and it is considered appropriate to give another youth conditional caution);

• The new offence of threatening a person in public or on school premises will result in a youth aged 16 or over going straight to charge, as this offence carries a minimum sentence of a 4 months detention and training order and therefore should not be dealt with using an out of court disposal.

 11. Administering a youth caution or youth conditional caution

11.1.  A youth caution or YCC should be given at a police station. The police officer administering the youth caution or YCC should be in uniform, unless special circumstances make this impracticable or inappropriate. The police officer administering should be an officer of the rank of sergeant or above.

11.2.  Within the restorative clinics the deliveryof a youth may be done by a suitably trianed warranted officer.

12.  Decision to bail

12.1.  Section 34 of PACE allows the police to bail a young person pending a decision on whether or not to deliver a caution. This would include the power to bail for an assessment to determine if it was in the public interest to prosecute a young person and for the purpose of delivery.

12.2.  All young persons should be bailed (37/7) to return to a police station - the young person and appropriate adult should be informed of the reason for bail.  The young person should be bailed to return to custody at 6 weeks and/or be at a later date than the appointment with the restorative clinic.

 

13. Appropriate adult 

11.1.  Where the young person is aged under 17, the youth caution must be given in the presence of a parent or guardian or other appropriate adult, and the written information must be issued to the adult.


14. The form of reprimands and final warnings 

14.1.  The police officer should administer the youth caution orally. This should always be supplemented with written information, which explains clearly the implications of the outcome. This information is produced as page two of the Genesis-generated simple formal caution/youth caution form 1285YC - this is available via File/New/My Template/Word.

14.2.  Where a final warning is given for a non-recordable offence, the young person, the police officer and, where applicable, the appropriate adult must sign a form at the point the youth caution is given to confirm that all parties agree that it was administered for the offence(s) indicated. This form will be important in any subsequent proceedings as the court will need to know of any previous sanctions (whether for a recordable or non-recordable offence) because of the restrictions on the availability of a conditional discharge in these circumstances.


15. Fingerprints and DNA

15.1.  Where a Youth Caution or Youth Conditional Caution is given for an offence, supporting fingerprints are required as these are recordable disposals and needed so that the disposal can be cited in any future criminal proceedings, or form part of the criminal record for employment purposes.

15.2.  Fingerprints, photographs and DNA samples from offenders subject to diversion will be taken subject to the Police and Criminal Evidence Act 1984.  Also refer to policy N53: Intimate, non-intimate and DNA database samples and its standard operating procedure plus HOC 20/2004 and HOC 28/2005.

16. Notifying PNC

16.1.  PNC will be notified of all youth cautions and youth conditional cautions in accordance with current procedures as detailed in policy N29 (restricted).


17. Citation in court 

17.1.  The legislation provides that youth cautions, youth conditional cautions and non-compliance with voluntary interventions or conditions may be cited in court.

18. Prosecution of young offenders 

18.1.  The preferred method to institute proceedings against persons under the age of 18 will be to charge as per Director of Public Prosecutions (DPP) Guidance re: Statutory Charging, unless there are exceptional circumstances.

18.1.1. Charging can be used for those over the age of 10 years. A Custody Officer can charge a person under the age of 18, either individually or jointly, with an offence in accordance with policy M01A (restricted): Prosecution and Diversion (adults).

19. Youth Offending Team (YOT) consultation 

19.1.  In cases where a young offender is due to appear in court immediately after charge for Breach of Bail, Breach of the Peace or for a no bail Warrant, an e-Yot Referral (E form 85) must be sent to the Youth Offending Team by the Officer in Charge (OIC) immediately.

20. Recording of Youth Cautions and Youth Conditional Cautions

20.1.  In the case of a young person who is dealt with by way of youth caution an youth conditional caution in respect of an offence listed in category ‘A’, the conviction history will ‘Step Down’ after a clear period of 10 years, for a category ‘B’ or ‘C’ offence for 5 years and thereafter only be open to inspection by the Police. (Retention guidelines for nominal records on the Police National Computer are available at Kent Police intranet/reference/kent policy and good practice).


20.2.  The OIC must, when dealing with an offender whose home is (or has recently been) outside the Kent Police Area, make enquiries with the other Force to establish if the offender has previously received an out of court disposal or conviction for a non-recordable offence. This is in addition to the normal checks to be carried out on PNC and with the PNC Bureau.

21. Child Prostitutes 

21.1.  Young persons under the age of 18 involved in prostitution are primarily victims of abuse who do not consent freely to prostitution. They should be treated as victims who are likely to be at risk of significant harm as legislated for in the Children Act 1989. They should if at all possible be diverted from prostitution without recourse to the Criminal Justice System. On these occasions child protection procedures will be invoked.


22. Racially aggravated offences 

22.1.  An important aggravating factor will be when an offence is racially motivated. The Crime and Disorder Act 1998 introduces a range of offences, based on existing offences, which incorporate this aggravating factor as part of the offence itself. These offences are not included specifically in the matrix because the process of determining the gravity of the offence itself, requires that where the victim’s race is a motivation, consideration must be given to raising the gravity score of the offence. e.g. ABH attracts a gravity score of 3 in the matrix. Where the offence is racially aggravated, consideration should be given raising this to 4.

 23. Property values 

23.1.  Some of the criteria include a consideration of monetary value relevant to offences.  Flexibility should be demonstrated by police decision makers in comparing these values to those recorded against the relevant incident. Estimates of the value of property and of damage are often unreliable and tend to be subjective.

 24. Traffic related offences 

24.1.  Where a young person commits a minor road traffic offence, a fixed penalty notice remains an appropriate response for 16 and 17 year olds. If a young person receives such a penalty, this has no bearing on the capacity of the police to issue a caution or youth conditional caution for any further offences, nor does it count as a conviction.

24.2.  Wher the motoring offence would normally attract an endorsement, careful consideration should be given to utilising an out of court disposal, as no endorsement can be made.


25. Gravity score 

25.1.  The presumptions applicable to the final gravity score reached, when all the relevant factors have been applied to the circumstances of a particular offence, are listed in the table below.  

25.2.  The Gravity Factor matrix must be used to assess whether a young person should be Cautioned, Conditionally Cautioned or Charged for an offence.  They reflect the Public Interest Principles in the Code for Crown Prosecutors.

25.3.  The LASPO Act removes the escalator approach to youth offending and allows offences to be dealt with appropriately, according to the offence(s) committed.

 

FINAL SCORE

ACTION

4

Normally result in charge.

 

 

2/3

Normally a youth caution.  If the offending behaviour cannot be satisfactorily

addressed by a caution, consider Youth Conditional Caution.  If neither of

these address the offending behaviour, or provides the necessary support,

then charge.

 

1

Always the minimum response applicable to the individual offender i.e.

Community Resolution or caution, youth conditional caution or charge.

 

25.4.  Discretion exists to deviate from the normal response, as outlined above, but only in exceptional circumstances. Such deviation would need to be justified by the decision maker. A Community Resolution, which falls outside the parameters of the table above, can be given in circumstances where a minimal response is appropriate.

25.5.  ‘No Further Action’ has not been included in the above table as it is not so much a method of disposal for an admitted case of a young offender, as an acknowledgement that no action is appropriate or warranted in a particular case. No substantive offence can be mitigated down to warrant no further action, using the gravity factor decision process alone.

26.  Using the ACPO gravity factors

26.1.  It is important that officers apply the gravity factors accurately and consistently when undertaking gravity assessments.


26.2.  It is most important that the appropriate offence is determined according to the evidence, and that decision is made before any consideration of the gravity factors.


26.3.  Having decided the appropriate offence, the gravity score can only be up-graded or downgraded by one point irrespective of the number of factors present. However, the mere presence of a (+) or (-) factor does not always mean an offence gravity score will be changed.


26.4.  It is important for decision makers to ensure that both the ‘offence specific gravity factors’ and the ‘general factors for all offences’ are considered for each offence for which a decision is made. This will ensure that the seriousness of the offence, the particular circumstances of it, and the offender’s current and previous behaviour are all considered. In any case, the consideration given to aggravating and mitigating factors should be noted within the decision recorded.

27. Offences not covered by this criteria 

27.1.  Not all offences are dealt with in this document. Offences that are not included should be dealt with in accordance with the general principals of this document.

28.  The following documents provide various tables that can be applied to the gravity scoring:

29. Retention and disposal of records

29.1. Documents mentioned in the above policy will be retained for the period specified inthe supporting disposal schedule.

30. Equality impact assessment

30.1. This policy has been assessed with regards to its race and diversity equality. As a result of this assessment, it has been graded as having a medium potential impact.

 

30.2. Attached is the latest equality impact assessment that forms part of the review process.

Policy reference: M01 Prosecution and diversion - children and young people
Policy owner: Chief Superintendent. Head of Central Investigation Command
Contact point: Policy Unit
Date last reviewed: 05 April 2013
Document last saved: 08 May 2013