Thread by @BarristerSecret

Several people have asked about this news report and are understandably concerned.

I’ll try to do something on it later, but what is immediately clear is that this report is lacking critical information, and appears designed to enrage rather than inform. mirror.co.uk/news/uk-news/b…

For one, if a youth pleads guilty in the Youth Court and has no previous convictions, the court’s powers are strictly limited in law. This is because the principal aim of youth justice is (as set out in statute) to prevent reoffending, in contrast to the adult system.

As ever, the absence of detail means it is difficult to offer an informed opinion on whether the sentence is “right”, but I’ll try to shed some light on what might have happened and what the law says later today.

Right. So, still not fully clear, but this BBC report clears up some of the confusion.

As far as I can tell, this is what happened [THREAD] bbc.co.uk/news/uk-englan…

Three youths were charged with offences committed against these two women. It should go without saying that the reports and images are shocking, and public concern about this type of offending is plainly justified.

What is important however is that not all defendants were charged with the same offences. Why not? Well, we don’t know for sure (information remains patchy), but it’s likely that the evidence showed that not all of them were involved in all of the offences committed.

This 16 year-old, for instance. The Mirror says, in its headline and the body of the report, that he “pelted” the women “with coins”.

This, it appears from the more sober BBC report, is false.

**#FakeLaw KLAXON**

The BBC reports that the 16yo was charged with the following offences. Crucially, he was not charged with assault, or any other offence, in relation to coin-throwing.

His part in the offence appears to have been limited to using threatening/abusive words/behaviour against the victims (an offence which does not carry imprisonment), and stealing a handbag and phone.

The prosecution appeared to accept he was not involved in the violence.

Whether that decision was correct or not, I can’t say. Lack of information, again. We haven’t seen all the evidence or the CCTV. But given how high profile the case is, it would be unusual for the CPS not to pursue a (more serious) charge of assault if the evidence was there.

So how and why was he sentenced? Well sentencing for youths, as I’ve said above, is a different exercise to sentencing adults. The priorities are completely different.

A court sentencing an adult must balance the statutory purposes of sentencing, attaching weight to each factor according to the facts of the case. [Left]

In Youth Courts, the principal aim above all else is to prevent reoffending. [Right]

Custody has to be a last resort for youths. Full details are in the Sentencing Guideline here: sentencingcouncil.org.uk/wp-content/upl…

This means that cases which would inevitably mean custody for adults, often don’t for youths.

In this case, there are three offences. One, as I’ve said, appears to be a public order offence contrary to s5 Public Order Act 1986, which doesn’t carry imprisonments. Maximum sentence for an adult is a fine.

The other two are thefts.

An adult convicted of two thefts would be sentenced on the Theft Sentencing Guideline, here. sentencingcouncil.org.uk/wp-content/upl…

Assuming a total value of less than £1,000 for the bag and phone, this looks like a Category 2A or 3A offence.

I’d say High Culpability, due to this being a group offence with intimidation.

Depending on value, it’s either low or medium value with significant additional harm.

This would give a starting point of either 1 or 2 years, with a range from 6 months up to 3 years 6 months. You’d then adjust the starting point to reflect aggravating and mitigating factors.

Serious aggravating factor: hostility based on victims’ sexual orientation.

Significant mitigating factor: youth and immaturity.

Also, he pleaded guilty, so is entitled to a discount of up to one third off his sentence.

There may be other mitigating factors that haven’t been reported. For Youth Court sentences, there are lengthy & detailed reports prepared by the Youth Offending Service. Many are damaged children from chaotic or abusive backgrounds with learning and/or mental health needs.

Crucially however, he is a youth. So the main Guideline is the Sentencing Children and Young People Guideline, as above. The adult guideline might be of some help if the Youth Court decides it has to be custody, but law is clear that custody has to be a “measure of last resort”.

What kinds of sentence can be imposed in the Youth Court? Here’s a good summary:

Crucially, where a youth has no previous convictions and pleads guilty, the Youth Court’s powers are strictly limited. It’s either a referral order or immediate custody - nothing in between.

The benefit of a referral order is that if it’s completed and there’s no further trouble, the conviction effectively drops off the youth’s record, and so won’t blight them as they progress to adulthood.

This section in the BBC report is ambiguous and poorly worded, but I think it means to say that a referral order of 6 months was the starting point, and the length of the order was increased to reflect the aggravating factor of homophobia (as per s146 Criminal Justice Act 2003).

The inference I draw from all of this is that this was the 16 year-old’s first ever appearance before the criminal courts. The Youth Court therefore had a stark choice between a short burst of custody (a Detention of Training Order of at least 4 months) or a referral order.

Did the court get it “right”? Always hard to say without knowing all the facts, but generally speaking, I would expect a referral order to be imposed on a first time youth offender for two thefts and a section 5, even though the circumstances are particularly horrible.

I understand the strength of feeling over this case. I’d strongly recommend reading the Sentencing Guideline for Children and Young People. It explains why the criminal courts deal with youths in this way and why apparently lenient sentences can be imposed sentencingcouncil.org.uk/wp-content/upl…

That’s my best guesswork. As ever, courts could do themselves, and us, an enormous favour by publishing their sentencing remarks in cases which they know will attract widespread attention. We shouldn’t really have to rely on inaccurate tabloid reports and anonymous rabbits. [END]