It emerged last week that a
12-year-old boy who raped his seven-year-old sister after watching hardcore
pornography on the internet has avoided a custodial sentence.
The boy, now 13, pleaded guilty
to rape, two counts of indecent assault and inciting a child to engage in
sexual activity at Blackburn Youth Court. The court heard that he had viewed
pornography with friends and had gained a ‘desire to try it out’.
The boy is currently living away
from the family home, although social workers are hoping to return him soon. In a victim impact statement his sister said she wanted her
brother to return. She said: ‘I feel sad what [he] did…I want him to go to our
house so I can play games with him. I love [him]’.
In a statement, the boy said he
was ‘disgusted’ with his actions and promised there would be no repeat.
Sentencing the boy, District
Judge James Prowse said he thought it ‘highly improbable’ he would reoffend. He
said that detaining the boy would ‘tear the family apart’ and introduce the ‘immature’
boy to ‘hardened and sophisticated’ youth offenders.
The boy was sentenced to a 12
month referral order and placed on the sex offenders register for two and a
half years.
What is a referral order? How do
they work?
Referral Orders – General
A referral order orders a youth
offender to be referred to a youth offender panel. It is the role of the panel
to agree a ‘contract’ between the youth offender and the panel which aims to
repair the harm caused by the youth’s offending and tackle its causes so as to
avoid reoffending in the future.
Eligibility for a Referral Order
The law on referral orders is set
out in the Powers
of Criminal Courts (Sentencing) Act 2000 (please note the following links
to the Act do not reflect the up to date text of the Act). According to section 16 of
the Act, a referral order can only be made where the sentence for the offence
is not fixed by law (such as murder), the court is not considering a custodial
sentence (prison (called detention in relation to a young person)) or a
hospital order, or discharging the young offender absolutely or conditionally,
and arrangements have been made in the local area for referral orders.
In certain circumstances, a court
is required to impose a referral order. Section 17(1)
provides that a referral order must be imposed where the offence is punishable
with imprisonment, the youth has pleaded guilty to the offence and any
connected offences, and the youth has never been convicted of an offence
previously in the UK or the European Union (EU).
A court may also impose a
referral order, under section 17(2)
of the Act, where the youth offender has pleaded guilty to the offence and
pleaded guilty to at least one other offence if he or she is being dealt with
for other offences at the same time.
Under section 18 of
the Act, a referral order must last for at least 3 months and may last for up
to 12 months. Under section 20 of
the Act, a court is empowered to order the youth’s parent or guardian to attend
the youth offender panel meetings. It will always order this if the youth is under
16 years of age, unless it would be unreasonable to do so.
The Youth Offender Panel
A youth offender panel must consist
of at least three members – one member of the local youth offending team and
two other members (who are local volunteers). The aim of panel meetings is to discuss the offending behaviour, how it has
affected the victim and the cause or causes of the behaviour. The victim may themselves
be present to explain the effect of the offending. The aim is then to agree a
contract which seeks to repair the harm done and reduce the risk of future
reoffending. It might involve, for example, a requirement to do some work in
the community, to write a letter of explanation to the victim, or to undertake work focusing on decisions and consequences.
Once the contract is agreed and
signed the youth is kept under review until the end of the order. The youth is then discharged if they have satisfactorily complied with the
contract.
Breaching an Order
What happens when a youth
offender fails to attend their appointments, fails to agree to sign the contract, or
fails to comply with the requirements set out in the contract? In
essence, the panel is entitled to allow the youth offender another opportunity
or to ‘breach’ them and return them to court. If the youth is returned to court
then, according to Schedule 1 of
the Act, the court is empowered to revoke the order and deal with the youth in
any way it could have when it first sentenced the youth or allow the order to
continue.
What if the youth is convicted of
another offence while subject to an order? Schedule 1 provides a number of
options. Where the later offence is committed before the referral order was
made, the court may sentence the offender for the second offence by extending
the time for which the youth must comply with the referral order. If the
offence is committed after the referral, the court may again extend the period
if there are exceptional circumstances justifying this. Otherwise, sentencing
for the new offence will have the effect of revoking the referral order and the
court may, if it is in the interests of justice to do so, resentence the youth
for the original offence that initially resulted in a referral order.
Conclusion
Referral orders attempt to repair
and address offending behaviour in young persons so that they are adequately
punished while their future risk of reoffending is reduced. They are designed
to prevent the young offender returning to the criminal justice system.
What are your thoughts on
referral orders? Are they appropriate in these serious cases?
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