The Policing and Crime Act 2017 and the 28-day time limit on bail was widely welcomed when it was first introduced. It was hoped that it would lead to a significant reduction in the uncertainty of people waiting to be charged, as well as for their alleged victims. The police would either have to charge the suspect within 28 days, seek an extension or ‘release under investigation’ or ‘RUI’. The reality has been quite the opposite. Statistics show that suspects now spend considerably longer under investigation than they ever did on bail, cases are simply lost in the system.
The implications are most striking on young people arrested on suspicion of criminal offences. The case of Knight made clear that procedural efficiency is of particular importance in cases involving youths. Under the RUI scheme, that procedural efficiency is clearly lost.
Three years on from the introduction of the legislation, fewer offences are being charged and the number of people ‘under investigation’ continues to grow. Covid 19 has made the backlog in charging decisions almost exponentially worse. The question for lawyers has been whether or not this delay amounts to a breach of Article 6 and whether any prejudice arises.
Jim Sturman QC was instructed to represent X who was charged with offences of Possession with Intent to Supply Class A drugs. The offences had been committed whilst he was a youth, but he was not charged for very nearly two years, and by the time he was charged he had turned 18. Mr Sturman QC made representations that it was not in the public interest to proceed, given the implications for X’s future in education and in employment, and in particular that he was no longer eligible for a referral order which if he had been given his conviction would have been spent and his future would be unaffected – importantly in the intervening 2 years he had been in no other trouble. The Prosecution agreed and offered no evidence against X.
Sadly, this is very rarely the case. Rhys Rosser represented TF in July 2019 before Woolwich Crown Court. TF had been arrested in May 2018, when he was 17, and those instructing Rhys (Leah Connolly of Sonn MacMillan Walker) had chased the CPS for a charge before he turned 18. Despite these efforts, it was not until 3rd April 2019 that a charge was issued. He was now an adult and so could not be dealt with by the youth court.
Rhys argued before HHJ Raynor QC at Woolwich Crown Court, firstly that the delay was such that under the provision of TBF it amounted to a breach of Article 6. HHJ Raynor QC acceded to that submission, given the clear importance in cases relating to youths.
Of course there is a second hurdle in an Abuse of Process argument, the need to show prejudice. Rhys submitted that in this case the prejudice was two-fold. Firstly that TF no longer benefitted from the protection of the Youth Court and second that he would no longer receive a mandatory referral order.
A referral order is the mandatory sentence in a youth court or magistrates’ court for most first time offenders who have pleaded guilty to an offence. TF was of good character and so, in the circumstances, would have received a referral order had his case been dealt with in the youth court. As TF was now an adult, a strict reading of the sentencing guidelines provides for a starting point of 4 ½ years.
The particular strength of a referral order is that once it is completed, it is considered spent for the purpose of previous convictions. This means it does not need to be declared. There is no sentence in the adult court that is able to mirror a referral order.
In light of Rhys’ submission, HHJ Raynor QC found that it was absolutely clear that TF would have received a referral order and “there is no sentence available that mirrors that in the Youth Court”. In those circumstances, HHJ Raynor QC stayed the proceedings. The Prosecution have not appealed the terminating ruling.
The case of TF and X show the importance of robust challenge to both the investigative and charging process. The use of RUI is unlikely to decrease, unless further indictments are stayed as a result of the prejudice caused by a system that is simply not fit for purpose.
Those who represent youths for drugs offences (that might perhaps be seen by teenagers as little more than a “rite of passage” with little, or more often, no, consideration of the consequences for their future) need to be alert to ensure they do not wait and allow a young person to be dealt with in an adult court. Nearly 40% of 16-year old teenagers admitted to using drugs in an NHS survey in 2019, an adult conviction for possession or possession with intent can have a devastating effect on a young persons future and because of the problems with the RUI scheme many youths are eventually processed in the adult court. Whilst a fair Judge might consider they should look for a comparable penalty to that a youth court would have imposed there can be no guarantee that sympathetic approach will be the norm.
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