Legal Commentary
| Author | Nigel Stone |
| Date | 01 December 2002 |
| Published date | 01 December 2002 |
| DOI | 10.1177/147322540200200305 |
| Subject Matter | Articles |
‘Use of Section 91 Detention for Under-15s’ and
‘Anti-Social Behaviour Orders: Naming Juveniles’
Nigel Stone
Correspondence: Nigel Stone, School of Social Work and Psychosocial Studies,
University of East Anglia, Elizabeth Fry Building, Norwich, NR4 7TJ. Email:
n.stoneVuea.ac.uk
1. Use of Section 91 Detention for Under-15s
The validity of making a detention order under Powers of Criminal Courts (Sentencing) Act
2000 (PCC(S)A, 2000) s.91 for a ‘grave crime’, in circumstances where a detention and training
order (DTO) is not available on summary conviction, was considered in an earlier Legal
Commentary article in this journal (Stone, 2002). The issue is now worth revisiting in the light
of two further more authoritative judgements, with important implications for youth courts in
determining whether to exercise power to commit a young defendant to the Crown Court
under s.24 (1) of the Magistrates’ Courts Act 1980 (see also Stone, 2002a) in circumstances
where a term exceeding two years detention is not the anticipated outcome.
Prior to the introduction of the DTO such use of Children and Young Persons Act 1933
(CYPA, 1933) s.53 (3), as then governed detention for grave crimes, was not unusual and had
been explicitly recognised in the leading s.53 guideline judgement, R. v Fairhurst [1986] 8 Cr.
App. R. (S.) 346, subsequently endorsed by the Court of Appeal in R. v Mills [1998] 2 Cr. App.
R. (S.) 128. Some illustrations were given in Stone (2002, 48). However, many of the reported
instances of shorter terms of s.53 (3) detention arose when there was no other custodial
sentencing power for the under-15s, for whom the alternative form of custody for young
persons, detention in a young offender institution (YOI), was not available because of the
minimum age at point of conviction then specified for YOI detention, namely 15.
Following the introduction of DTOs by the Crime and Disorder Act 1998 (CDA 1998),
providing sentencers with an alternative form of custodial sentencing for the under-15s, albeit
subject to important restrictions, some early guidance was provided by the Appeal Court in R.
v Ganley [2001] 2 Cr. App. R. (S.) 60 in which Rose LJ stated that though s.53 (3) powers were
unaffected, ‘it will generally be appropriate to make a DTO rather than to have recourse to
s.53’. On the strength of this assertion, counsel in R. v J-R. and D. [2001] 1 Cr. App. R. (S.)
377, an instance where a DTO was not an available option, sought to argue that no offender
aged under 15 could be detained if of previous good character. That case involved a 14 year
old boy who had pleaded guilty to participation with other youths in robbery at knifepoint (of
£1.05) of a boy of the same age, an offence said to have been wholly out of character. The
Court (Rose LJ again presiding) ruled that Ganley had no such implication and that ‘the power
to order s.53 detention, for whatever period, has been expressly preserved and may be
imposed’. Hallett J. added that in Ganley, Rose LJ ‘was merely reminding sentencers of their
duty to avoid imposing lengthy sentences on very young offenders where possible’. A s.53 term
of 15 months was substituted for the original sentence of 20 months. In another appeal case
around that time, R. v T. and F. [2001] 1 Cr. App. R. (S.) 294 (noted in Stone, 2002b), also
featuring street robbery, a 13 year old girl (who was eligible for a DTO) was given an 18 month
s.53 (3) term, on the understanding that this form of sentence would afford her a better
placement location than a DTO term of that same length.
164
Legal Commentary
The Penal Powers Reconsidered
The Divisional Court has now revisited the issues in two notable judgements delivered within
a month of each other in June/July 2002. In R. (on the application of W.) v Thetford Youth Court
and R. (on the application of M.) v Waltham Forest Youth Court [2002] EWHC 1252, [2002] Crim.
L.R. 681 both cases involved indecent assault, the kind of offending that is perhaps most likely
to arouse concern at youth court and prompt consideration of transfer to the Crown Court.
In neither instance was a DTO available, in the former instance because the defendant W. was
aged 11 and thus ineligible because no order has yet been made under PCC(S)A 2000 s.100
(2) (b) extending this disposal to offenders aged under 12 at time of conviction. He was alleged
to have forced four girls aged between seven and ten, by the use or threat of violence, to
engage in sexual activity with him over a period of months, including touching and licking his
penis. In the latter instance, the defendant M. was aged 13 but he was not a ‘persistent offender’
under PCC(S)A 2000 s.100 (2) (a). (It is noteworthy that if W. had been 12 he would have
fulfilled the prevailing interpretation of a ‘persistent offender’.) M. was alleged to have chased
a girl aged 12 into a darkened room where he had undone her trousers and placed his hand
inside her knickers, digitally penetrating her. In each instance the youth court had declined
jurisdiction, both such decisions being challenged by application for judicial review.
The criterion specified by Magistrates’ Courts Act 1980 (MCA 1980) s.24(1) where a youth
court declines to deal summarily with a grave crime is that ‘the court considers that if he is
found guilty of the offence it ought to be possible to sentence him’ under s.91. The words
‘ought to be possible’ were accepted by counsel representing all parties to mean ‘a real
possibility’,...
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