The Act Commentary on Sections Part 2: Sentencing Section 35: Referral conditions
294.This section amends section 17 of the 2000 Act which sets out the circumstances in which a magistrates’ court must or may impose a referral order when sentencing a child or young person. When a child or young person is given a referral order, he or she is required to attend a youth offender panel, which is made up of two volunteers from the local community and a panel adviser from a youth offending team. The panel, with the young person, their parents/carers and the victim (where appropriate), agree a contract lasting between three and 12 months. The aim of the contract is the prevention of reoffending by the offender.
295.Under section 16 of the 2000 Act, a referral order cannot be given at present to an offender where the sentence: is fixed by law; is so serious that the court decides a custodial sentence is absolutely necessary; or the offence is relatively minor and the court proposes to give an absolute discharge.
296.Subject to those exceptions, under the 2000 Act a referral order must be given to a child or young person where the following conditions are met, namely:
	the offence is punishable with imprisonment,
	the offender pleads guilty to the offence and any connected offence,
	the offender has not previously been convicted of an offence, and
	the offender has never been bound over to keep the peace.
297.Subsection (2) amends section 17(1) of the 2000 Act so as remove the condition that the offender must never have been bound over to keep the peace. As a result the fact that the offender has previously been bound over to keep the peace would not be a bar on the making of a mandatory referral order.
298.A referral order may be given to a child or young person where the following conditions are met, namely:
	the offence is one that is not punishable with imprisonment,
	the offender pleads guilty to the offence and any connected offence,
	the offender has not previously been convicted of an offence, and
	the offender has never been bound over to keep the peace.
299.A referral order may also be given to a child or young person where the offender is being dealt with for two or more connected offences and the following conditions are met, namely:
	the offender pleads guilty to at least one of those offences and not guilty to at least one,
	the offender has not previously been convicted of an offence, and
	the offender has never been bound over to keep the peace.
300.Subsection (3) inserts a new subsection (2) into section 17 of the 2000 Act, the effect of which is modify the conditions that must be met before a discretionary referral order may be made. As with mandatory referral orders, the fact that the offender has previously been bound over to keep the peace would no longer be a bar to making a discretionary order. In addition, it would now be possible to make a discretionary order where the offender had one previous conviction and where, in respect of that previous conviction, a referral order had not been made.
301.Subsection (4) repeals section 17(5) of the 2000 Act. As a result a conditional discharge would no long be treated as a conviction for the purposes of section 17.