Legal Commentary
| Date | 01 August 2001 |
| Author | Nigel Stone |
| DOI | 10.1177/147322540100100206 |
| Published date | 01 August 2001 |
| Subject Matter | Articles |
Legal Commentary
Decisions to Prosecute in the Youth Court
Nigel Stone
Correspondence: School of Social Work and Psychosocial Studies, Elizabeth Fry
Building, University of East Anglia, Norwich, NR4 7TJ Email: n.stoneVuea.ac.uk
The prosecution of two boys aged 10 and 11 in a Suffolk youth court attracted wide but not
altogether accurate coverage in the national press in May 2001, because it raised questions
about whether the case should have been discontinued, or should not have been brought in
the first place because it was an expensive, inappropriate and ‘pointless’use of the criminal
justice system in response to a ‘playground scrap’. It seems worth reviewing what legal
responsibilities and provisions were actually at stake.
The boys were alleged to have committed two separate assaults of another boy of Asian
ethnicity who attended the same school, one involving a punch on the arm, the other a more
sustained incident in which the complainant said he was tripped up, hit on the back and called
a‘Paki bastard’. The two boys denied the latter allegation in significant respects, particularly
the use of racist abuse.
Police Decision-Making
As the more serious allegation, of racially aggravated assault under CDA 1998 s29(1), was
denied there was clearly no question of the police reprimanding or warning the boys under the
provisions of CDA 1998 s65 since s65(1)(c) requires the child’s admission of guilt. In any event
the police would have referred to the Association of Chief Police Officers’Case Disposal Gravity
Factor System (CDGFS) guidelines (2000). It is not clear from press reports whether the facts
were considered to amount to actual bodily harm (ABH) or simply common assault (‘assault
by beating’) but the initial gravity score for ‘ordinary’ABH is ‘3’while the less serious form
of assault scores ‘2’. The CDGFS does not provide separate scores for racially aggravated forms
of either offence ‘because the process 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’. In illustration, the guidance indicates that where an ABH assault was racially
aggravated, ‘consideration should be given to raising the score to 4’and, by implication, to ‘3’
for racially aggravated common assault. Of course, racial aggravation covers a range of possible
considerations, such as whether the offence was racially motivated at its core or the element
of racial hostility was more in the nature of an incidental feature in an episode prompted by
other motives (R v Kelly and Donnelly [2001] Crim. L.R. 411, further to the advice of the
Sentencing Advisory Panel, 2000) and the police would thus need to assess the significance of
the abuse expressed. (In this case, it was suggested that the boys may have been responding
primarily to being taunted as Teletubbies by the complainant, on account of their weight and
lack of academic progress, respectively.)
Among other factors of arguable relevance to the present case that can justify raising the
initial score: ‘there are grounds for believing the offence is likely to be repeated, e.g. by a history
of recurring conduct’(the complainant’s family are said to have reported 17 previous incidents
in the preceding two years, apparently prompting informal reprimands by the police when
those responsible were under the age of criminal responsibility); ‘the offence, though minor, is
prevalent in the local area’(press reports refer to a history of neighbourhood racial tension
leading, in one instance, to an adult being bound over). The guidelines indicate that the police
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