The Criminal Justice and Immigration Act 2008
The Criminal Justice and Immigration Act [opens in a new window] was passed in May 2008. The Act introduced important changes to the youth justice system. The main youth justice provisions in the Act are:
- purposes of sentencing for the youth justice system
- the Youth Rehabilitation Order
- extension to Referral Orders, early discharge for good behaviour
- Youth Conditional Caution
- anti-social behaviour measures
- Youth Default Orders
- 'spent' warnings, reprimands and cautions
- Sexual Offences Prevention Orders
Youth Justice: The Scaled Approach is a programme of work that, in developing a tiered approach to interventions based on risk of reoffending and risk of serious harm, supports the introduction of this new sentencing framework.
Diagram that illustrates the changes in sentencing structure [289Kb PDF, opens in a new window].
For any query or additional information on any aspect of the Act, please contact Bill Kerslake in the YJB’s Effective Sentences Team.
This guidance is non-statutory guidance for the Act. It outlines the YRO and other key youth justice related provisions of the Act to enable YOT practitioners and managers to understand these legislative changes and prepare for their implementation.
Note: This provision of the Act was due to be commenced on 30 November 2009. The Justice Secretary decided not to implement this provision as a result of concerns raised with him by the senior judiciary and the Sentencing Guidelines Council following responses received to their consultation.
The concern was that by not including the equivalent purpose of sentencing to the adult one of ‘the reduction of crime' (including its reduction by deterrence) in those applying to under-18s, this could be interpreted as precluding courts from including an element of deterrence in sentences for under-18s. The Justice Secretary has said that he will seek to amend the legislation to confirm that an element of deterrence can be included in sentences given to under-18s when the opportunity arises.
The original provision within the Act
When sentencing a young offender under the age of 18 the Court must have regard to the following:
- the principal aim of the youth justice system (to prevent offending and reoffending)
- the welfare of the offender
- the purposes of sentencing, which are:
- reform and rehabilitation
- protection of the public
- reparation to persons affected by offences.
The Youth Rehabilitation Order (YRO) is a generic community sentence for children and young people who offend and combines a number of existing sentences into one generic sentence. It is the standard community sentence used for the majority of children and young people who offend. It aims to simplify sentencing for young people, while improving the flexibility of interventions.
The YRO came into effect on 30 November 2009. Read full details of the sentence and it's structure.
Summary of changes
The Act extends the circumstances in which a court can make a Referral Order. These changes were introduced on 27 April 2009.
A brief presentation has been created [1.47Mb PowerPoint presentation; opens in new window] to provide a summary of these changes.
The Act makes changes to the discretionary conditions applying to referral orders. In addition to the existing provisions, where the Referral Order criteria are otherwise satisfied, the court will be able to make a referral order where:
- the offender has had one previous conviction but has not previously received a referral order or
- the offender has previously been bound over to keep the peace or
- the offender has previously received a conditional discharge.
In addition the court has the power:
- to make a second Referral Order, in exceptional circumstances, on the recommendation of the YOT
- to revoke a Referral Order early for good behaviour
- to extend the term of a Referral Order for up to three months on the recommendation of the youth offender panel (for example where non-compliance occurs through circumstances beyond the control of the offender, i.e. illness).
Increase in Youth Offender Panel hearings
These legislative changes will result in an increase in Youth Offender Panel hearings and increased demand for trained panel volunteers. The YJB has estimated that on average YOTs will need to increase their current volunteer capacity by 17% on average to cover the expected additional panel hearings, bearing in mind the statutory requirement for at least two volunteers to be on every panel.
YOT readiness checklist
View the YOT Readiness Checklist [83Kb Word document; opens in new window], created to help YOTs assess their readiness to implement the proposed changes in terms of:
- governance and management (section one)
- staffing and support services (section two).
Resources for delivering Referral Order best practice
- Panel Matters training programme for Panel volunteers
- Our guidance that sets out how volunteers should be managed and used
- Key Elements of Effective Practice - Restorative Justice and the full source document on which this was based.
- Reparation Guidance [80Kb PDF; opens in new window]
- Referral Order Action Plan [47Kb PDF; opens in new window]
Revised Referral Order guidance
Click to read the Referral Order Guidance, revised and published in May 2009 by the YJB, Ministry of Justice and DCSF.
Youth Offender Panel member length of service
Following a review of Youth Offender Panel volunteer service, Ministers have decided that:
- the tenure of current panel volunteers can be extended for a maximum of two years
- any new panel volunteer recruited in the next 12 months will be recruited for a maximum of six years.
This situation will be reviewed in April 2010.
The Youth Conditional Caution (YCC) will be an additional, higher-tariff pre-court disposal which aims to reduce the number of young people being taken to court for a low-level offence.
The YCC is available for use by the Police and the Crown Prosecution Service (CPS) if the offender has not previously been convicted of an offence, admits guilt and consents to the caution. The conditions may include provisions to support rehabilitation, effect reparation or punishment and can include a fine and/or an attendance requirement (which might include completion of a specified activity, but cannot exceed 20 hours).
YOTs will have the key role in assessing cases, recommending, supervising and delivering YCC conditions, subject to approval and oversight by the CPS.
The Act makes the Youth Conditional Caution available for 10 to 17-year-olds, although the Government will initially pilot for 16 and 17-year-olds only. The pilot began on 26 January 2010.
The Act features several measures on anti-social behaviour. These provisions became effective on 1 February 2009.
One-year reviews for Anti-Social Behaviour Orders (ASBOs) are now mandatory for those issued to persons under 17-year-olds, and are applicable to any ASBO (stand alone or on conviction) that has been granted or varied nine months prior to 1 February and applied for from this date.
Individual Support Orders (ISOs) must be issued with every ASBO (stand alone or on conviction) where a magistrates’ court considers it would help to prevent further anti-social behaviour. Magistrates must justify their decision making if an ISO is not granted. An ISO can be applied for at any time during the ASBO (even if it was not applied for at the initial hearing) as long as:
- an ASBO has been applied for in the first instance
- the application is from the original applicant
- the subject is still considered a young person
- the ASBO is still in force.
An ISO can be applied for more than once and subsequent to the initial hearing with no limit as to the number of applications made. There is a six month maximum limit for each application as long as the ISO does not exceed the length of the ASBO.
District councils have been added to the list of local authorities in England that may enter into a parenting contract or apply for a parenting order.
Youth Default Orders will enable a court to impose an unpaid work requirement (if 16 or 17), curfew requirement or attendance centre requirement on a young offender in lieu of an unpaid fine. The length of the order will be dependent on the amount which the offender has failed to pay.
This provision of the Act has yet to be commenced.
The Act amends the Rehabilitation of Offenders Act 1974 to bring warnings, reprimands, simple cautions and conditional cautions within the scope of that Act. Reprimands and warnings are spent at the time they are given; conditional cautions are spent after three months. Once such warnings and cautions become ‘spent’, an ex-offender is generally not obliged to declare them when applying for a job, but the disposals are recorded on the Police National Computer and will continue to be disclosed where required for Criminal Records Bureau enhanced and standard checks. Note that these provisions apply retrospectively to all reprimands and warnings given prior to December 2008.
This provision was commenced on 19 December 2008.
Amendments to the Sexual Offences Act 2003 will mean that some young people convicted of offences listed in schedule 3 of the Act will become eligible for a sexual offences prevention order; this is expected to affect only a small number of young people, for example those convicted of a Section 3 sexual assault.
These amendments were commenced on 14 July 2008.